DataTalk NZ Ltd – TERMS AND CONDITIONS OF SALE
All products and services (“Goods”) supplied by DataTalk NZ Limited (“the Seller”) to the buyer (“the Buyer”) are supplied subject to the following Terms and Conditions of Sale (“Terms”). These Terms are deemed to be attached to and incorporated into every order for, and contract for the sale of, the Goods by the Seller and shall apply to the exclusion of any other terms unless those other terms are expressly agreed to by the Seller in writing.
2. Supply of Goods
Goods will be supplied where either direct credit, cheque or credit card payment accompanies an order or where a duly authorized Company Purchase Order has been received (whether in writing or verbal) and is charged against an account previously opened with the Seller.
All prices listed are GST Exclusive unless otherwise stated. Prices are subject to change without notice.
The Buyer agrees to pay to the Seller in full for all invoices by the due date with no off-set or deduction. The due date (“Due Date”) shall be defined as the earlier of:
a) On or before the date for payment as listed on the invoice;
b) Immediately when the Buyer sells or disposes of the goods; or
c) Immediately, if the Buyer takes any insolvency action, or has any insolvency action taken against it. “Insolvency Action” includes, but is not limited to, any action in connection with bankruptcy, liquidation, receivership, voluntary administration, or arrangements or compromises with creditors.
If the Buyer disputes the amount owing, it must pay the undisputed amount by the Due Date. Where payment on the Buyer’s account is overdue, the Buyer is in default and the Seller may, at its discretion, refrain from supplying any further Goods. The Buyer agrees to pay interest on all sums and overdue amounts outstanding at 2% per month from the due date until payment is made. Interest will be compounded monthly and added to the overdue amount. The Buyer will also be liable to pay to the Seller all the Seller’s costs and expenses in relation to recovering any monies owing. On receipt of any payment, the Seller reserves the right to allocate that payment, or parts thereof, towards any amounts owing by the Buyer.
5. PPSA (Personal Property Securities Act)
a) The Buyer agrees that clause 9 below creates a security interest in the Goods, their proceeds and accessions of which they become part to secure payment of the purchase price of the Goods and all outstanding debts and obligations of the Buyer to the Seller. The parties agree that this agreement is a “security agreement” for the purposes of the Personal Property Securities Act 1999 (“PPSA”).
b) The Buyer agrees to execute any documents, provide all relevant information and co-operate fully with the Seller to ensure that the Seller can perfect its security interest in the Goods (including proceeds) and that the Seller can register a financing statement on the Personal Property Securities Register (“PPSR”).
c) The Buyer will immediately notify the Seller in writing of any change in the Buyer’s name or other material identifying characteristics of either the Buyer or the goods purchased.
d) Nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this contract. The Buyer waives its rights pursuant sections 116, 121, 125, 129 and 131 of the PPSA and its rights to receive any verification statement relating to the security interests in the Goods under section 148 of the PPSA.
The Seller shall use its best endeavors to arrange prompt delivery of Goods ordered. Dates given by the Seller for delivery shall be deemed to be indicative only but will not be accepted as a condition of sale. If delivery of the Goods is delayed for any reason whatsoever the Seller shall not be liable in any way for loss of revenue or profits or any consequential loss or damages for failure to deliver on such date.
7. Freight and Handling
Goods are sold ex-store with any freight and handling charges for the account of the Buyer. Goods returned from evaluation or for warranty claims must be consigned by the Buyer freight pre-paid.
Risk of any loss, deterioration or damage of or to the Goods shall be borne by the Buyer from the time of dispatch from the Seller’s premises. The Buyer shall insure and keep insured the Goods to the full price against all risk until the Seller has received payment for the Goods in full. The Seller will not be held liable for any damage, loss or delay occurring to Goods in transit.
9. Ownership of Goods
Ownership of any Goods does not pass until payment in full has been received by the Seller in respect of all Goods supplied, together with all interest and any other monies due and the funds have been cleared by the Seller’s bank. The Buyer shall not charge the Goods in any way nor give any interest in the Goods while they remain the property of the Seller.
10. Product Warranties
The Seller warrants all Goods to be free from defect and, unless stated otherwise, such warranty shall be for a period of 12 months from date of purchase. The Seller shall, at its option, repair or replace any defective goods provided that the Goods have not been subjected to improper use and that the claim is within the provisions of the warranty applicable to the Goods in question. Proof of date of purchase may be requested by the Seller to support any warranty claim. The specifications of all Goods are approximate and are subject to change without notice. Products are warranted on a “return to base warranty” so that charges will apply for any labour and travel to recover and re-install the faulty items.
11. Consumer Guarantees Act
In every case where the Goods are supplied by the Seller for the purpose of a business, the guarantees in the Consumer Guarantees Act 1993 shall be excluded.
The Seller will not accept the return of Goods already invoiced unless the Seller agrees otherwise, in its absolute discretion. Where the Seller accepts returned goods a 30% restocking fee may be levied. Approval for credit returns must be requested on the DataTalk NZ Ltd Return Authority (RA) Form within 14 days of receiving the Goods. Approval for credit is at the Seller’s exclusive discretion and any goods approved for return must be returned:
– to the Seller within 7 days of receiving RA approval;
– free into the Seller’s store with all costs including the original shipping costs to the Buyer being payable by the Buyer; and
– in “as new” condition in the manufacturer’s original container, unsoiled and undamaged.
No credit will be issued for:
– Goods specifically imported or manufactured for the Buyer;
– Goods received without an approved RA; or
– Goods returned more than 30 days from the invoice date.
13. Intellectual Property
Where the Goods incorporate any software or intellectual property (together, “IP”), subject to these Terms and the payment of the purchase price, the Seller grants the Buyer a non-transferable, non-exclusive, perpetual right and license to use the IP. The Seller warrants that it has the right to grant this licence. The Buyer must not modify any part of the IP without the Seller’s consent. The Buyer will indemnify the Seller against any claims, costs or liabilities incurred by the Seller arising from any unauthorized use of the IP, or any breach by the Seller of any intellectual property rights of any third party.
14. Exclusion of Liability
The Seller shall not be liable for any errors or omissions. To the maximum extent permitted by law, the Seller shall not be liable to the Buyer for lost profits, loss of goodwill or any other incidental or consequential loss or damages in connection with the supply or use of any Goods in any way. Further, the Buyer agrees that in no case shall the liability of the Seller exceed the purchase price of the Goods giving rise to any liability.
Revised 09 June 2015