Terms & Conditions
Trust IT Terms and Conditions of Trade
- The following are definitions of terms used in these Terms of Trade
- Confidential Information means any trade secrets, know-how, technical, commercial, financial, or product information, intellectual property, software, business systems, policies and procedures, information technology infrastructure, account access details, technical data, or any other information which either party gains access to in connection with this Agreement, which is not otherwise public knowledge.
- Materials means all goods, products and materials supplied by Us (if any) in carrying out the Services.
- PPSA means Personal Property Securities Act 1999.
- Price means the amount payable by You to Us for the supply of the Services and is exclusive of GST unless otherwise stated.
- Quote means a quotation for the cost of the supply of Services provided by Us to You and which specifies the Services to be supplied and the site where they are to be carried out, the Price and due date for payment of the Price.
- Services means all services supplied by Us, such services including, but not limited to, diagnosing and repairs, managed IT support, managed backup, remote support services, cloud solutions, and cyber security, travel and associated costs, and includes all Materials supplied by Us in carrying out the Services where the context requires.
- Variation means a variation to the Services in accordance with clauses 11 – 13.
- Variation Quote means a variation quote provided by Us to You in accordance with clause 12.
- We, Us or Our means Christchurch Technology Limited trading as “Trust IT”.
- You or Your means you as the customer and as set out in the Quote or in any other form of instruction provided by You. Where You are more than one person or entity, those persons or entities will be jointly and severally liable under these Terms of Trade.
- If You accept Our Quote in accordance with clause 3 or otherwise instruct us to supply Services to You or a third party, you agree to accept these Terms of Trade which will be binding on You. For the avoidance of doubt if we commence work on your verbal or other instruction, but you do not sign or provide written acceptance of our Quote then that commencement of work will be taken as confirmation of your acceptance of these Terms of Trade.
- If We provide You with a Quote:
- The Quote will remain valid for acceptance by You for 30 days from the date of the Quote, unless otherwise stated in the Quote.
- All amounts on the Quote will be exclusive of GST, unless otherwise stated.
- The Quote may include a deposit payable by You on acceptance of the Quote and in these circumstances, acceptance of the Quote is not complete until payment of the deposit is received by Us unless otherwise agreed.
- The Quote is subject to any potential contingencies which we have discussed with you in quoting on your project and the accuracy of any information You provide to Us and should such information not be accurate resulting in an increase in the costs to Us then such increase will be passed to You and reflected in our price.
- The Quote is subject to incidental goods and services costs and disbursements (including but not limited to copy costs, communications, and materials). Where Services are carried out on a time charge basis We may purchase such incidental goods and / or services as are reasonably required for Us to perform the Services. The cost of obtaining such incidental goods or services shall be payable by You. Where Services are carried out ‘after-hours’ then you acknowledge that you will be charged a separate after-hours rate.
- If the Quote is incorrect due to circumstances out of Our control or clerical error, We reserve the right to amend the Quote at any time.
PRICE AND PAYMENTS
- If We do not provide a Quote to You for which you validly accept, the Price will be the cost for providing the Services at the time that We supply the Services.
- If We do provide a Quote to You then subject to acceptance of the Quote in accordance with clause 3, the Price will be the amount specified in the Quote, subject to any agreed Variation in accordance with clause 14, and any additional charges relating to after hours services.
- We will issue you with invoices in respect of the Price:
- For any deposit payable if specified in the Quote or otherwise agreed;
- On completion of the Services;
- On termination in accordance with clauses 27 and 28;
- On suspension of the Services in accordance with clause 8;
- Where the supply of the Services is ongoing, at our sole discretion by interim invoices following end of calendar months.
- You agree to pay to Us:
- the amounts specified on our invoices by the 20th of the month following the date of the Invoice, or such other date as specified in the Quote or as otherwise agreed between You and Us in writing.
- interest on any amount you owe to Us after its due date at 2.5% per month above Our current overdraft rate, and expenses and costs incurred by Us as a result of Us enforcing any of our rights contained in these Terms of Trade including, but not limited to an Administration Fee of $25.00 for any payments remaining overdue 30 days after the due date. PPSR registration fees and maintenance fees, debt collection and legal fees.
- All payments You are required to make to Us under clause 7 are essential terms of these Terms of Trade and you acknowledge that if you fail to make any such payment to Us by its due date, then we have the right to suspend the provision of Services and We will not be liable for any loss or damage suffered by You or any third party as a result of such suspension.
OUR PROVISION OF SERVICES
- Upon your valid acceptance of a Quote or otherwise upon your instruction to us to supply Services, We will:
- provide the Services in accordance with the Service Level Agreement for Our Managed Service Clients, and otherwise as soon as is reasonably possible and in accordance with these Terms of Trade and New Zealand law;
- exercise reasonable care, skill and diligence;
- use suitably skilled, experienced and qualified personnel to carry out the Services.
- You acknowledge that:
- our provision of the Services may be delayed by events beyond Our control including but not limited to Your failure to provide us with on-site access to any such location required, any passwords required, or any licenses required; and
- any date given by Us to You as a date that we will provide the Services is an estimate only and We will not be liable for any loss suffered by You or a third party to provide the Services on that date.
- Notwithstanding clause 9.1, We are entitled (without liability to You) to delay, vary or cancel the performance of any of Our obligations if and to the extent that We are prevented from, hindered in or delayed in the performance of any of Our obligations through any circumstances beyond Our control including acts of God, governmental actions, strikes or other labour disputes (whether or not relating to Our workforce), lock-outs, accidents, war or national emergency, acts of terrorism, protests, riot, civil commotion, explosion, flood, epidemic, fire, natural disasters, earthquakes, adverse weather, reduction in or unavailability of energy sources, breakdown of machinery, restrictions or delays affecting delivery of the Services, default of suppliers or subcontractors, shortage or unavailability of Materials from normal sources of supply, the unavailability of an internet connection or third party communication services, or the amendment or coming into force of any regulatory provision affecting the production of
- You may order a Variation to the Services as set out in our Quote or as otherwise instructed by You to:
- Increase or decrease the quantity of Services;
- Omit any part of the Services;
- Change the character or quality of any Services;
- Change the order in which the Services are to be completed;
- Change the timeframe for delivery and / or completing of the Services.
- Upon receipt of your order for a Variation, We will provide you with a Variation Quote.
- Once You agree to the Variation Quote and communicate that in writing to Us, that Variation will form part of the Services.
CONSENTS, ACCESS, HEALTH AND SAFETY
- Unless otherwise agreed, You are solely responsible for:
- obtaining and arranging at your cost any consents, approvals, and / or licenses required for Us to complete the Services, with exception to the Security Consultant and Security Technician License issued by the Ministry of Justice which We have obtained;
- ensuring compliance with all laws and regulations which affect the Services We supply to You;
- ensuring adequate access to the physical site to which the Services are to be supplied, and to any information technology based programs as required, and ensuring availability of all facilities reasonably required for Our provision of the Services to you (including but limited to electricity);
- ensuring that the physical site where we are supplying the Services complies with all relevant health and safety laws, regulations and requirements, is adequately secure to protect our equipment, and has adequate clear access. For the avoidance of doubt you agree and acknowledge that We have not and will not assume any duty pursuant to the Health and Safety at Work Act 2015 arising out of this engagement and that for the purposes of this Act We will not at any time have management or control of the workplace;
- ensuring You advise Us prior to the Services being supplied, of any hazards at the physical site where we are supplying the Services to You, and that you indemnify Us against any breach by You of relevant health and safety laws, regulations and requirements;
- with respect to any additional works which are not included in the Services subject to this contract between You and Us, You may enter into separate contracts with persons other than Us for any such additional works or services to be carried out, however You must ensure that We are indemnified for any delays and/or costs suffered due to any act or omission by any separate contractor, the effect of which shall be treated as a Variation; and
- advising us in writing of anything that may materially affect the scope or timing of our provision of the Services.
- You shall indemnify Us against any loss suffered by Us or liability incurred by us in respect of any breach of your obligations under clause 14.
RENTENTION OF TITLE, RISK, PPSA & RIGHT TO REPOSSESS
- You agree that title to any Materials purchased as part of our Services will not pass to You until You have paid Us in full the Price.
- Despite clause 16, risk in any Materials purchased or hired from Us as part of our Services will pass to You as soon as the Materials are delivered to the site where the Services are to be carried out.
- If any Materials are damaged or destroyed following our delivery of them, but prior to title passing to You, You agree that We are entitled to all insurance proceeds made in respect of the Materials.
- You irrevocably authorise Us to enter any site at which the Materials are situated at any reasonable time after default by You or before default if We believe a default in payment or in Your obligations pursuant to these Terms of Trade is likely, and to remove and repossess any of the Materials supplied.
- We shall not be liable for any costs, damages, expenses or losses incurred by You or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded.
- You will be responsible for any costs, damages, expenses or losses (including any insurance excess costs) incurred by Us with respect to the repossession of any Materials supplied.
- You agree that We hold a security interest (as that term is defined in the PPSA) pursuant to clause 16, in any Materials which You purchase from Us, until such time that we have received all amounts owing by You to Us, and You further agree:
- To authorise Us to register a financing statement and charge on the Personal Properties Security Register and sign any further documents and/or provide any further information which We require to register a financing statement or financing change statement; and
- You will not register a financing change statement or change demand without Our prior written consent;
- You waive any rights You may have under sections 116, 120(2), 121,125, 126, 127, 129, 131 and 132 of the PPSA.
- Nothing in sections 113, 114(1)(a), 117(1)(c), 133 and 134 of the PPSA apply to these Terms of Trade.
- You waive Your rights to receive a verification statement in accordance with section 148 of the PPSA.
- At the earlier of, the expiry of the term of Supply or termination by either party pursuant to clauses 27 and 28, You shall provide Us with reasonable access to the site for collection of any Materials which You have hired from Us as part of the Services.
- You agree that You:
- Will not sell or offer for sale, assign, mortgage, pledge, underlet, lend or otherwise deal with any Materials which You have hired from Us, but will keep these Materials in Your own possession;
- Will not allow any lien to be created over any Materials which you have hired from Us, for any reason whatsoever;
- Will protect any Materials which You have hired from Us against distress, execution or seizure; and
- Will effect all necessary registrations, obtain any necessary licenses and comply with all statutes and regulations relating to Your use of the Materials which You have hired from Us.
- Will only use the Materials which You have hired from Us in a skilful and proper manner and will restrict the use and operation of these Materials to safe, careful and competent personnel, selected, employed, trained and controlled by You.
- Will keep the Materials which You have hired from Us in good and substantial repair and condition, with an allowance for fair wear and tear, and will:
- Immediately upon becoming aware of, report to Us the existence of any defects in, or failure of, or damage to the Materials which You have hired from Us, or any part of these Materials, arising from whatever cause and will comply with all reasonable directions from Us.
- Be responsible for all costs of repair and maintenance (including any insurance excess costs paid by Us) which are required as a result of any negligence, misuse or abuse of the Materials which You have hired from Us.
- Provide Us with access to the Materials which You have hired from Us at reasonable times to inspect the state and condition of these Materials.
- You agree that You:
DEFECTIVE MATERIALS / SERVICES AND LIABILITY
- You must inspect the Services on or before completion of the supply of Services and notify us within 30 days of that date (time being of the essence) if there are any alleged defects or failure to comply with the Quote or other agreed Services. You must inspect any Materials provided by Us to You on delivery and notify us within the timeframe specified on the warranty statement provided of any alleged defect. If You fail to comply with this provision, then the Services and Materials supplied shall be presumed to be free from any defects or non-compliance.
- If you notify us within the time period set out in clause 21, and We agree in writing that You are entitled to reject the Services, then We will, at our sole discretion re-supply the defective or non-compliant Services (or the part of the Services). You acknowledge that you will be charged for any additional onsite visit but will not be charged for the service charge.
- Clauses 21 and 22 are subject to any manufacturers’ warranties for any Materials relevant to the notified defect. Where we provide you with a manufacturer’s warranty, then the warranty shall be the current warranty provided by the manufacturer of the Materials.
- The warranties under these clauses 21 to 23, or any other warranties We are required to give at law, shall not cover any defect or damage which may be caused or partly caused by or arise through:
- Failure on Your part to comply with any of your obligations under these Terms of Trade (for example – but not limited to your responsibilities under clause 14.
- Failure on Your part to follow any instructions or guidelines provided by Us on using and maintaining any Materials relevant to the notified defect; and
- Any use of the Materials relevant to the notified defect otherwise than in accordance with their intended use; and
- The continued use of any Materials relevant to the notified defect, after any defect becomes apparent or would have become apparent to a reasonably prudent person.
- If We are supplying the Services to You for the purposes of trade or a business you agree that the provisions of the Fair Trading Act 1986, the Consumer Guarantees Act 1993 and any other applicable customer protection legislation do not apply to the extent permissible by law and to the maximum extent permitted by law our warranties are limited to those set out in these Terms of Trade, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Contract and Commercial Law Act 2017) are expressly excluded.
- Unless specified in writing, We give no warranty express or implied as to the quality, description or fitness for any particular purpose of the Materials and Services. Notwithstanding this, if the Consumer Guarantees Act 1993 applies to the supply of Services, You have all of the rights and remedies provided under that Act.
- Either party may choose to terminate the supply of Our Services to You by giving one month’s written notice to the other party (“early termination”). If You choose to serve notice of early termination, You will remain liable to Us for any costs and losses incurred by Us including but not limited to loss of profits as a result of such termination.
- We may terminate these Terms of Trade immediately, if:
- You are bankrupted, insolvent, under statutory management or put into liquidation;
- A court judgment entered against You remains unsatisfied for 7 days; or
- Any suspension in accordance with clause 8 remains in place due to non-payment for 2 months or more.
- Termination under these clauses 27 and 28 (or suspension under clause 8) will not affect Our rights at the time of termination or suspension, to claim any amount due to Us, damages, or any other losses or costs suffered by Us, and is without prejudice to our rights under these Terms of Trade including Our right to repossess the Equipment, and recover interest, compensation and costs under the Terms of Trade, at law or in equity. Upon termination, we will issue You with an invoice to reflect any costs and losses incurred by Us and a proportion of the Price reflective of the partial supply of Services (if any).
- The parties must use best efforts to resolve any dispute under, or in connection with, this Terms of Trade through good faith negotiations.
- In the event that resolution by good faith negotiations is not achieved to the satisfaction of both parties within 30 days of the dispute arising, such dispute will be referred to mediation or to the Disputes Tribunal (as may be appropriate) for resolution.
- In the event that resolution is not achieved through mediation then either party may choose to refer the dispute to arbitration in accordance with the provisions of the Arbitration Act 1996.
- This clause does not affect either party’s right to seek relief from any court.
- To the extent permitted by law, in no event will We be liable to You for any loss (including but not limited to loss of profits or other economic loss, indirect, special, consequential, general or other similar damages) which You suffer or incur for any reason whatsoever including arising out of any breach of these Terms of Trade or obligations under these terms.
- To the extent permitted by law, Our liability (if any) for any loss arising from a breach of any guarantees, conditions and warranties, or Terms of Trade, is limited to a maximum aggregate amount payable of five times the Price (exclusive of GST and disbursements) with a maximum limit of $NZ50,000.00.
- Without limiting any defences, a Party may have under the Limitation Act 2010, neither Party shall be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made on a Party within 6 years from completion of the Services.
- If either Party is found liable to the other (whether in contract, tort or otherwise), and the claiming Party and/or a Third Party has contributed to the loss or damage, the liable Party shall only be liable to the proportional extent of its own contribution.
- We shall not be liable for any delay or failure to perform Our obligations if the cause of the delay or failure is beyond Our control.
- We shall not be liable for any damage or deterioration to the Services or Materials on-site caused by or resulting from unforeseen physical conditions. You indemnify Us against any claim against Us by any person whatsoever for damages or expenses incurred as a result of the same.
- You indemnify Us against any loss which We suffer, incur or are liable for in connection with any breach of these Terms of Trade, or negligence, by You or with Us exercising Our rights under these Terms of Trade.
PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
- Where You are a company or trust, the director(s), trustee(s) or authorised person(s) accepting the Quote and these Terms of Trade unconditionally guarantee, as principal debtor, to Us the due and punctual payment by You of all moneys owing to Us and the due observance and performance by You of all of Your obligations under these Terms of Trade, in consideration for Us agreeing to supply the Services and/or Materials to You.
- Despite the termination of Our supply of Services to You, the guarantee in clause 39 is an irrevocable and continuing guarantee and remains in full force and effect until You have paid all monies owing to Us.
- Where Intellectual property prepared or created by the Us in carrying out the Services (“New Intellectual Property”) shall be jointly owned by both parties, You and We hereby grant to each other an unrestricted royalty-free license in perpetuity to copy or use New Intellectual Intellectual property owned by a Party prior to the commencement of our supply of Services to you (“Pre-existing Intellectual Property”) and intellectual property created by a Party independently of our supply of Services to you remains the property of that Party.
- You agree that you will not copy, reproduce, modify, or attempt to source code for any of the software or services provided by Us pursuant to our supply of Services to you.
- The ownership of data and factual information collected by Us and paid for by You shall, after payment by You, be deemed your property.
- We accept no liability for use of New Intellectual Property or Pre-existing Intellectual Property for any purpose other than the
PRIVACY AND CONFIDENTIALITY
- You authorise Us to:
- collect, retain and use Your personal information, for the purposes of supply the Services and marketing other products and services to You; and
- disclose Your personal information whether obtained directly or from any other source to any credit reporting agency for the purposes of debt collection.
- Both parties agree to keep all Confidential Information of the other party undisclosed and in strict confidence, except as necessary for the purposes of the Services being supplied to You by Us (including pursuant to clause 42), or if authorised by the other party.
- On termination of Our supply of Services to You, both parties must return to each other all of the other party’s Confidential Information.
- Any notice given under these Terms of Trade must be given by email to the addresses set out in the Quote or as otherwise notified in writing.
- You may not assign or transfer your rights or obligations under these Terms of Trade to any other party without Our written consent.
- We may subcontract or assign any of our rights or obligations under these Terms of Trade to any other party without Your written consent.
- Where You have engaged us to perform Services to a third party (the Principal) then Our liability to the Principal is limited as per clauses 34 – 38 and You warrant that You are the Principal’s agent for the purposes of this Contract.
- The parties agree and acknowledge that any agreements or documentation between the parties requiring signatures may be entered into by digital signatures and may be signed in counterparts.
- If any of these Terms of Trade are determined to be invalid, void, illegal or unenforceable, the remaining terms will remain valid and binding.
- These Terms of Trade together with the Quote (if validly accepted by You) and any Variation (if applicable) supersede all prior agreements, representations and warranties.
- These Terms of Trade apply to any current instruction and to any future instruction, whether or not we send you another copy of them. Notwithstanding, You acknowledge that We may amend these Terms of Trade from time to time as we see fit.