Terms and Conditions of Trade
1. DEFINITIONS AND INTERPRETATION
1.1 “Contract for Goods and Services” shall mean the agreement (whether written or verbal) between iConduit and the Customer for the supply of Goods and Services.
1.2 “Customer” shall mean any person or entity that iConduit provides Goods to and/or carries out Services for and if there is more than one than each person or entity is jointly and severally the Customer.
1.3 “Customer’s Property” shall mean any tangible or intangible property owned by the Customer that may be the subject of a Contract for Goods and Services with iConduit.
1.4 “Customer’s Site” shall mean the site (or sites if applicable) owned, occupied and/or under the control of the Customer where iConduit’s Services may be carried out and/or the Customer’s Property may be stored.
1.5 “Goods” shall mean the goods to be supplied by iConduit to the Customer in satisfying a Contract for Goods and Services and includes, without limitation, software, computer accessories, computer hardware, computers, materials, products, parts and components.
1.6 “iConduit” shall mean iConduit Systems Limited trading as IT Squad (or such other names as it trades by), its successors and assigns or any person acting on behalf of and with the authority of iConduit Systems Limited.
1.7 “Person” includes a company, partnership, family trust, individual or any other entity.
1.8 “Services” shall mean computer and information technology services to be supplied by iConduit to the Customer in satisfying the Contract for Goods and Services and may include, without limitation, the supply of Goods, repairs, maintenance, programming, servicing, installation, hosting, managing, updating, remote support and other information technology related services.
1.9 Unless the context requires otherwise:
1.9.1 References to any statute, regulations or other statutory instrument or by-law shall be deemed to be references to a statute, regulations, instrument or by-law of New Zealand as from time to time amended and includes substitute provisions (whether in an amendment of existing legislation or in new legislation) that substantially correspond to those referred to;
1.9.2 Where the context requires or admits, words importing the singular shall import the plural and vice versa; and
1.9.3 References to any party includes the successors and any permitted assigns of that party and party means them collectively.
2. ACCEPTANCE OF TERMS AND CONDITIONS OF TRADE
2.1 Any instructions received by iConduit from the Customer for iConduit’s Goods and Services shall constitute acceptance of these terms and conditions of trade and the terms and conditions of trade shall form part of a binding contract between iConduit and the Customer.
2.2 These terms and conditions of trade do not require the Customer’s signature to be deemed to be binding.
2.3 The Customer warrants it has the power to enter into a Contract for Goods and Services with iConduit and has obtained all necessary authorisations to do so. The Customer further warrants it is not insolvent and accepts the Contract for Goods and Services creates binding and valid legal obligations on it.
3. PERSONAL GUARANTEE
3.1 IConduit may require one or more of the representatives of the Customer to jointly and severally personally guarantee the Customer’s obligations under any Contract for Goods and Services with iConduit.
4. QUOTATIONS AND PRICING
4.1 Where a quotation is given by iConduit for its Services then:
4.1.1 Unless otherwise agreed the quotation shall be valid for 7 days from the date of issue;
4.1.2 Unless expressed otherwise the quotation shall be exclusive of Goods and Services Tax (“GST”);
4.1.3 Where the quotation is based on information specified by the Customer, iConduit reserves the right to alter the quotation if there is a variation to this information.
4.1.4 IConduit reserves the right to alter the quotation if:
(a) The cost of the Goods increases beyond the control of iConduit between the date of the quotation and the completion of the Contract for Goods and Services; or
(b) The time estimated to satisfy the Contract for Services will be increased due to factors which were not reasonably foreseen by iConduit at the time of the quotation;
4.1.5 The Customer agrees to pay for the cost of any additional Goods and Services required over and above the Goods and Services included in the quotation.
4.2 Where a quotation is not provided by iConduit then:
4.2.1 The Goods and Services shall be deemed to be provided at the amount specified by iConduit and shall be exclusive of GST; and
4.2.2 IConduit’s pricing will be based on time occupied and the Goods required.
4.3 IConduit may request the Customer to make payment up front, to pay a deposit and/or to pay the balance of its invoice prior to collection of the Goods and/or the Customer’s Property.
4.4 IConduit shall be permitted to charge the Customer any Public Holiday rates it incurs in completing a Contract for Goods and Services.
5. ACCURACY OF INFORMATION FROM CUSTOMER
5.1 IConduit shall be entitled to rely on any information provided by the Customer in relation to the provision of Goods and Services including, without limitation, programs, timeframes, specifications, and information regarding any previous work that has been carried out on the Customer’s Property by any other Person.
5.2 IConduit shall not be liable for any loss, damages, costs and/or expenses incurred as a result of the Customer’s failure to provide information or the provision of inaccurate information.
6.1 Unless otherwise specified, payment under a Contract for Goods and Services shall be due to iConduit seven (7) working days following the date of the invoice.
6.2 Part payment of an account shall not amount to satisfaction of the whole account unless, prior to the act of making the part payment, iConduit agrees in writing that part payment will be accepted in full satisfaction of the account.
6.3 Any dispute of an invoice must be made in writing and received by iConduit within seven (7) working days of the Customer’s receipt of the invoice.
7.1 IConduit may charge penalty interest at a rate of 2% per month on any amount outstanding after the date payment was due under clause 6.1. Penalty interest is payable from the date payment was due until the date payment is received by iConduit. This clause is without prejudice to any other rights and/or remedies of iConduit in respect of the Customer’s default.
7.2 In the event that a payment is not made by the due date iConduit may, in its sole discretion, suspend the completion of any Services for the Customer but failure to do so shall not negate any other rights and/or remedies of iConduit. IConduit will not be liable to the Customer for any loss or damage the Customer suffers if iConduit suspends its Services under this clause.
7.3 Should the Customer default in payment or be placed in receivership, liquidation, declared bankrupt, or otherwise become insolvent, then in addition to any other rights and/or remedies of iConduit, it may demand immediate payment of all amounts then unpaid and cancel the completion of any existing Contract for Goods and Services with the Customer.
7.4 Any costs and expenses incurred by iConduit in enforcing its rights under these terms and conditions of trade, including debt collection agency fees and legal fees as between solicitor and client (being iConduit), shall be recoverable from the Customer.
7.5 The Customer indemnifies iConduit from and against all costs and disbursements incurred by iConduit in recovering any money owing to it.
8.1 IConduit may, in its sole discretion, allocate any payment received from the Customer towards any invoice that iConduit determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated.
9.1 The risk in any Goods supplied to the Customer under a Contract for Goods and Services shall pass to the Customer upon delivery of the Goods to the Customer.
9.2 IConduit shall insure the Goods whilst in transit to the Customer. The Customer must inspect the Goods upon receipt for the purpose of confirming they are of merchantable quality and have not been damaged in transit. The Customer, by accepting delivery of the Goods, shall be deemed to have unconditionally and irrevocably accepted the Goods as being of merchantable quality.
10. GOODS DAMAGED IN TRANSIT
10.1 In the event the Customer’s Goods are damaged in transit the Customer must notify iConduit as soon as reasonably practicable but in any event no later than three (3) working days after receipt of the Goods. The Customer must retain all packaging and forward same to iConduit for its inspection and the Customer, at the request of iConduit, must securely repack the damaged Goods for shipment back to iConduit at the expense of iConduit.
11.1 No Goods will be accepted for return without the prior written agreement of iConduit. IConduit’s agreement shall always be subject to receipt of the Goods free of cost at iConduit’s premises in re-saleable condition, and subject to the Customer paying all costs and expenses incurred by iConduit in arranging the return of the Goods to a manufacturer or supplier unless that manufacturer or supplier pays those costs.
12. RETENTION OF TITLE
12.1 Ownership and legal title in any Goods supplied by iConduit shall remain with iConduit regardless of whether they are attached, fixed, inseparable or indistinguishable from the Customer’s Property until full payment is made under the relevant Contract for Goods and Services.
12.2 If the Customer is in default under a Contract for Goods and Services, iConduit shall be entitled to remove, from the Customer’s Site and/or Customer’s Property, any Goods it has supplied and the Customer authorises iConduit to enter upon the Customer’s Site at any time to recover the Goods pursuant to this clause.
13.1 Where the Customer has not paid iConduit under a Contract for Goods and Services, iConduit shall have the right to retain the Customer’s Property until such time as all outstanding amounts have been paid.
14. PERSONAL PROPERTY SECURITIES ACT 1999
14.1 In entering a Contract for Goods and Services with iConduit the Customer acknowledges and agrees that the Contract for Goods and Services creates a security agreement between iConduit and the Customer for the purposes of the Personal Property Securities Act.
14.2 The Customer acknowledges and agrees that iConduit has a security interest in any Goods it supplies to the Customer under a Contract for Goods and Services when such Goods have not been paid for in full by the Customer prior to possession being given to the Customer.
14.3 IConduit may protect its interests by registering and maintaining a financing statement(s) on the Personal Properties Securities Register. The Customer waives its right to receive a copy of any verification statement received by iConduit.
14.4 The Customer undertakes to sign any documents and/or provide further information, such information to be complete, accurate and up to date in all respects, which iConduit may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register.
15. CONSUMERS GUARANTEES ACT 1993
15.1 The parties agree in the event the Goods and/or Services provided under a Contract for Goods and Services are provided in trade then they contract out of the provisions of the Consumer Guarantees Act 1993.
16. SUITABILITY OF GOODS
16.1 The Customer acknowledges and agrees that iConduit may recommend Goods manufactured and/or supplied by third parties from time to time and that such recommendations may be made in situations where the Customer has made known to iConduit the purpose for which the Goods will be used.
16.2 The Customer acknowledges and agrees that iConduit has no control over the factors that may contribute to the suitability, function, and/or fitness for purpose of the Goods in a new or existing computer environment.
16.3 The Customer must satisfy itself that the Goods are fit and suitable for the purpose for which they are required. IConduit makes no warranties nor representations that the Goods are fit for purpose and expressly negates any implied or express condition that any Goods will be suitable for a particular purpose or use for which the Customer may use them. The Customer accepts all risk and responsibility for consequences arising from the use of the Goods whether singularly or in combination with other Goods or Services.
17.1 IConduit shall not be bound by any term, condition, representation or warranty given by the manufacturer and/or supplier of any Goods and/or Services supplied to the Customer directly or by iConduit. The Customer acknowledges and agrees that it will deal directly with such manufacturer and/or supplier for any warranty claims relating to such Goods. IConduit agrees to provide its reasonable assistance to the Customer in seeking to enforce and warranties on the Goods.
18. ACCESS TO CUSTOMER’S PROPERTY
18.1 It is the Customer’s responsibility to:
18.1.1 obtain all licenses and consents required for the Goods and Services;
18.1.2 to provide access to the Customer’s Site at the agreed times. If the supply of Goods and Services are interrupted due to the Customer’s failure to provide the agreed access to the Customer’s Site then iConduit shall be entitled to invoice the Customer for any additional costs incurred by iConduit as a result of such lack of access; and
18.1.3 where applicable, provide passwords, access codes, and other details as required.
19. LIMITATION OF LIABILITY
19.1 IConduit shall not be liable for:
19.1.1 any loss of profit or indirect and/or consequential loss (whether arising under statute, contract, negligence or otherwise) arising out of a Contract for Goods and Services;
19.1.2 any loss, damage, costs, expenses, corruption or deletion of files or data or programs or otherwise, resulting from:
(a) the error or omission of the Customer or their customers, employees or agents, including but not limited to mislabelling, misfiling, unsafe use, failing to ensure adequate back-ups, failing to have adequate anti-virus protection in place;
(b) the fault, failure or otherwise of a third party supplier of Goods and/or services to iConduit and/or the Customer ;
19.1.3 any loss, damages, costs and/or expenses suffered by the Customer as a result of:
(a) IConduit failing to meet any delivery date or cancelling or suspending the supply of Goods or Services;
(b) the Customer making repairs or alterations to its Property without iConduit’s written consent;
(c) any damage to the Customer’s Property or the Goods caused by misuse, neglect or accident;
(d) work completed by iConduit to repair the work of a previous Person or contractor;
(e) damage and/or defects unrelated to any work performed by iConduit and/or works that iConduit have not been asked to repair under a Contract for Goods and Services.
19.2 In the event that iConduit is found liable for loss associated with Goods and/or Services provided under a Contract for Goods and Services then iConduit’s liability shall not exceed the price of the Goods and/or Services provided under the applicable Contract for Goods and Services.
20. SOFTWARE LICENCES
20.1 It is the Customer’s responsibility to store all licences for software used so that they can be reproduced if and when required.
20.2 The Customer agrees to indemnify iConduit for any claim, allegation, loss, damage or expenses arising directly or indirectly from:
20.2.1 any unauthorised software use by the Customer;
20.2.2 any breach of any software licences in respect of software provided by iConduit to the Customer to be installed in the Customer’s Property;
20.2.3 otherwise as a result of iConduit installing software in the Customer’s Property where the Customer is not authorised to use the software; and
20.2.4 Any problem, breach, defect or malfunction caused by the Customer to any software (or related services) supplied by third parties.
20.3 All copyright in custom software remains the sole property of iConduit’s unless alternate arrangements are made as part of a separate software agreement.
21. COPYRIGHT AND CONFIDENTIALITY
21.1 The Customer warrants that any confidential or copyright information or intellectual property provided by the Customer to iConduit belongs to the Customer. In the event of any breach of this warranty, the Customer will pay all sums due to iConduit as if such warranty had not been breached (and regardless of any non-performance of any obligation by iConduit in relation to the breach of such warranty). The Customer indemnifies iConduit in respect of any claim, loss, costs or expenses in connection with such breach of warranty.
21.2 All copyright and other intellectual property rights in any work created, commissioned or acquired by iConduit in the course of the supply of Services by iConduit remains the exclusive property of iConduit unless otherwise agreed in writing.
21.3 IConduit acknowledges that in the course of providing Goods and/or Services to the Customer, they may be party to confidential information relating to the Customer, their customers, consumers and employees. iConduit regards all such information as confidential.
21.4 The Customer acknowledges that all information and services, consulting techniques, and documents disclosed by iConduit during them carrying out this Contract for Goods and Services constitute valuable assets of iConduit and are confidential.
21.5 The parties agree to take all commercially reasonable steps not to disclose, reveal, copy, sell, assign, transfer or distribute any parts of such confidential information to any Person nor permit any of their employees, agents or representatives to do so for any purpose unless permitted in writing by the other party or as required by applicable law.
22. PRIVACY ACT 1993
22.1 The Customer authorises iConduit to collect, retain and use any information about the Customer for the purpose of assessing the Customer's credit worthiness, complying with the Contract for Goods and Services and marketing.
22.2 The Customer specifically authorises iConduit to disclose to third parties such information about the Customer as may be necessary to enable iConduit to arrange for the supply of Goods and/or Services from third parties for the purposes of complying with the Contract for Goods and Services.
22.3 Where the Customer is a natural person the authorities under clauses 22.1 and 22.2 are authorities or consents for the purposes of the Privacy Act 1993.
22.4 The Customer shall have the right to request a copy of the information held by iConduit about the Customer and the right to request iConduit to correct any incorrect information about the Customer.
23. FORCE MAJEURE
23.1 IConduit shall not be liable for any delay, failure to perform its obligations or default under the Contract for Goods and Services due to any act of God, terrorism, war, strike, lock out, pandemic, industrial action, flood, storm or other event beyond its reasonable control.
24. COMPLIANCE WITH LAWS
24.1 IConduit will comply with any laws, regulations, bylaws, rules and standards that are applicable to the Goods and/or Services it provides to the Customer including but not limited to the Health and Safety at Work Act 2015.
25. HEALTH AND SAFETY
25.1 The Customer warrants that, if requested, it will at all times comply with iConduit’s health and safety policies and will take all practicable steps to uphold these. The Customer indemnifies iConduit from and against any fines or penalties iConduit incurs as a result of the Customer, or any Person the Customer employs or contracts with, failing to comply with iConduit’s health and safety policies.
25.2 The Customer is responsible for undertaking its own health and safety policies, procedures and program at the Customer’s Site.
26. DISPUTE RESOLUTION
26.1 Disputes: Where any question, dispute or difference (“Dispute”) arises between iConduit and the Customer concerning or in any way arising out of these terms of trade or the performance by any party to these terms of trade, or of the circumstances, representations, and conduct giving rise thereto, no party may commence any court or arbitration proceedings relating to any Dispute unless that party has complied with the procedures set out in this clause.
26.2 Initial Consultation: Where any Dispute arises between the parties concerning or in any way arising out of these terms of trade or the performance of any party of these terms of trade, or of the circumstances, representations, and conduct giving rise thereto, the party initiating the Dispute must provide written notice of the same to the other party and the parties must meet forthwith and negotiate in good faith with a view to resolving the Dispute.
26.3 Referral to Mediation: If the parties are unable to resolve the Dispute by discussion and negotiation within 10 Working Days of receipt of the written notice of the Dispute, then the parties must immediately refer the Dispute to mediation.
26.4 Conduct of Mediation: The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator and at a fee agreed by the parties within 5 Working Days of the Dispute being referred to mediation in accordance with clause 26.3. Failing agreement between the parties, the mediator will be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.
27.1 No waiver by iConduit in respect of any breach of a Contract for Goods and Services shall operate as a waiver in respect of any subsequent breach.
27.2 If any clause(s) of these terms and conditions of trade shall be declared invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining clauses shall not be affected, prejudiced or impaired.
27.3 IConduit reserves the right to amend these terms and conditions of trade at any time. Any amendment will be incorporated into any existing Contract for Goods and Services and take effect from the date on which iConduit notifies the Customer of such change. The Customer will be deemed to have accepted such amendment if the Customer makes a further request to iConduit to provide Goods and/or Services.
27.4 These terms and conditions of trade are governed by and construed in accordance with the laws of New Zealand and the parties agree to submit to the exclusive jurisdiction of the courts of New Zealand.
27.5 IConduit may licence or sub-contract all or any part of its Services under the Contract for Goods and Services without requiring or seeking the Customer’s consent.
27.6 These terms of trade do not purport to restrict or otherwise limit the application of relevant statutes to the subject matter herein other than to the extent that such restriction or limitation is lawfully permissible and is contained herein.