TERMS AND CONDITIONS OF TRADE
Willis White & Co. Ltd. trading as EXODESK
The terms of trade set out below govern all of the supplies of goods including software and services from Willis White and Company Limited trading as Exodesk. Your acceptance of any goods or services from Willis White indicates your continuing acceptance of these terms of trade
In these Terms and Conditions of Trade:
“Account” means the Customer’s account with the Vendor.
“Customer” means the person or entity making the application or receiving goods or any person acting with ostensible authority on behalf of the Customer.
“Goods” means goods supplied by the Vendor to the Customer at any time.
“Guarantor” means any party executing a guarantee of the Account with the Vendor.
“Order” or “Orders” means the order or orders of the Customer to the Vendor to supply Goods.
"PPSA" means the Personal Property Securities Act 1999.
“Vendor” means Willis White & Company Limited trading as Exodesk.
2.1 The Vendor shall retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer for all Orders.
2.2 Until payment is made by the Customer, the Customer agrees to receive and hold any goods as trustee and bailee for the Vendor and store and sell them in a manner to enable them to be identified and cross referenced to particular invoices.
2.3 If the Goods are re-sold, the proceeds of re-sale will belong to the Vendor and the Customer shall keep the proceeds of sale in a separate account for which separate records are kept.
From the time of dispatch to the Customer by the Vendor, risk in all Goods supplied shall pass to the Customer and any loss, damage or deterioration to the Goods shall be borne by the Customer. The Customer shall notwithstanding any loss, damage or deterioration to the Goods remain liable to pay for the Goods.
4. Delivery & Performances
The Vendor will not be liable to the Customer for any delay in delivery or performance of the Goods and the Customer shall not be entitled to cancel orders because of any such delay. Dates for delivery are given in good faith and are not to be treated as a condition of sale or purchase.
Prices are subject to change without notice. All Orders will be charged at prices prevailing at the date of delivery of the Goods plus Goods and Services Tax.
The Customer shall not be entitled to cancel an Order for indented goods or return the Goods other than as allowed pursuant to these Terms and Conditions of Trade.
7. Specifications and intellectual property
Neither the Vendor nor its suppliers transfer any right, title or interest in any copyright, trade marks, or other intellectual property rights relating to any of the goods, manuals, specifications, designs, drawings, documents or software (except as set out in the software licence) supplied to you.
8. Terms of Payment
8.1 For Customers without an approved credit account, payment must be paid in full without deduction or set-off on supply.
8.2 For Customers with an approved credit account, payment must be paid in full without deduction or set-off by the 20th day of the month following the date of invoice, or an agreed payment date.
8.3 You will not be considered to have paid until the payment has been fully cleared through the banking system into the Vendor’s bank account.
8.4 The Vendor reserves the right to require prepayment for the whole or part of the price of the goods or services before accepting any order or part order
8.5 An administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this clause.
8.6 Interest will accrue on all amounts overdue at the rate of 5% per annum above the current overdraft rate charged by the Vendor’s bankers and the Vendor may suspend delivery of further goods or performance of further services until payment is made in full.
8.7 All costs of or incurred by the Vendor as a result of a default by the Customer including but not limited to administration charges, debt collection costs and legal costs as between solicitor and client shall be payable by the Customer.
8.8 all payments shall immediately become due to the Vendor if we reasonably believe that the information which you have given us in your application for credit is not correct and you have failed to give us correct information within 5 days of our request or if you sell or otherwise dispose of any equipment, or machinery without our consent
If the Customer defaults in any payment or commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if an application to appoint a liquidator is made or a receiver is appointed for all or any assets of the Customer, the Vendor may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders shall immediately become due.
Where a quotation is given by the Vendor for the supply of Goods:
9.1 unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue;
9.2 the quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary;
9.3 the Vendor reserves the right to alter the quotation because of circumstances beyond its control.
10. Errors or Omissions
Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice shall be subject to correction by the Vendor
11.1 Goods are subject to their manufacturers’ warranties only. The Vendor will pass on the benefit of those warranties to the customer without itself being directly liable to you under any other manufacturer’s warranty.
11.2 You are responsible for the cost of returning goods to the Vendor for warranty service and you may be responsible for additional costs including but not limited to freight and travel.
11.3 Any warranty will be voided by unreasonable use, damage or misuse (including problems caused by misuse or damage after the goods have left the Vendor’s care), negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorised repairs, modifications or the addition of hardware, software or consumables not supplied by the Vendor.
11.4 You will not be entitled to the benefit of any warranty if any sum that you owe the vendor for any reason is overdue.
11.5 Unless otherwise specified, the Vendor gives no warranty express or implied as to the quality, description or fitness for any particular purpose of the Goods.
11.6 Where the goods or services that you acquire from the Vendor are not of a kind ordinarily acquired for personal household or domestic use or consumption, or where you acquire, or hold yourself out as acquiring, the goods or services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or implied by common law do not apply to the supply of those Goods.
11.7 If you acquire any goods or services from the Vendor for resupply as or incorporate or attach any goods or services acquired from the Vendor into goods or services ordinarily acquired for personal household or domestic use or consumption (“Consumer Products”) you warrant that:
11.7.1 if you supply the Consumer Products directly to an end user/consumer you will do so using terms and conditions of supply which exclude the Vendor from liability for any claims under the Consumer Guarantees Act 1993; and
11.7.2 if your customer acquires the goods for resupply, your customer and each person in the distribution chain will exclude the Vendor from liability in its contract for supply for any claims under the Consumer Guarantees Act 1993,
but in each case only where the end user/consumer acquires the Consumer Products for business purposes.
11.8 You must indemnify the Vendor and its suppliers against any failure by you, your customers or any person in your distribution chain to properly contract out of liability to business end users/consumers under the Consumer Guarantees Act 1993.
11.9 Goods supplied are defective in terms of any condition warranty or guarantee or otherwise do not conform to the Order, the Vendor will at its discretion replace or repair, at the Vendor’s business address, any faulty Goods or pay the cost of replacing them, but only if a claim is made by the Customer within seven days of delivery of the Goods time being of the essence.
12. Personal Property Securities Act 1999
12.1 If we already have a registered security interest in goods we supply to you together with their proceeds, that security interest is continued under these terms of trade. Otherwise, you grant us a security interest in the goods that we supply to you together with all proceeds, whether or not those goods have become accessions to other goods or processed or commingled into or mixed with other goods. Where goods that we supply to you have become mixed with similar goods supplied by other persons, you grant us a security interest in the mixed goods to the value of the goods in the mixture that we have supplied to you but which have not yet been paid for. The goods and services subject to the security interest will be described on our invoices.
12.2 You agree that you will do all acts necessary and provide us on request all information we require to register a financing statement over the goods or their proceeds of all kinds, and that you will advise us immediately in writing of any changes to that information.
12.3 Nothing in sections 114(1)(a), 133, and 134 of the PPSA shall apply to this contract. The Buyer waives its rights pursuant to sections 121, 125, 129, 131 and 132 of the PPSA and its rights to receive any verification statement relating to the security interests in the Goods.
12.4 You agree that the Vendor at its option may require you to pay all reasonable costs, including legal costs on a solicitor client basis, associated with the discharge or amendment of any financing statement registered by the Vendor whether or not the change was initiated by you.
13. Privacy Act 1993
You authorise any person or company to provide the Vendor with such information as required in response to the vendor’s queries. You authorise the Vendor to furnish to any third party details held by the Vendor about you including any subsequent dealings you may have with the Vendor.
14.1 The Vendor’s liability to the Customer shall be limited to the value of the Order supplied.
14.2 The Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Vendor which cannot by law(or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Vendor. The Vendor’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
14.3 Except as otherwise provided above the Vendor shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods by the Vendor to the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by the Vendor to the Customer.
15.1 In the event of any dispute arising between the Vendor and the Customer, such dispute shall in the first instance be referred to mediation for resolution.
15.2 In the event that resolution by mediation is not achieved to the satisfaction of both parties within 30 days of referral to mediation, either party may then take legal action to resolve the dispute.
15.3 Nothing in this clause prevents the Vendor from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.
If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17. Changes of General Terms and Conditions
17.1 The Vendor may at any time refuse an order by the Customer or decline to approve any application by the Customer for any reason whatsoever.
17.2 The existence of an account by the Customer with the Vendor does not automatically entitle the Customer to credit in the future.
17.3 Failure by the Vendor to enforce any of the terms and conditions contained in these Terms and Conditions of Trade shall not be deemed to be a waiver of any of the rights or obligations the Vendor has under these Terms and Conditions of Trade.
17.4 The Vendor may from time to time by written notice to the Customer amend, add to or repeal the trading conditions covered by this Agreement or may substitute any fresh trading conditions and such amendment, addition or substitute trading conditions shall be binding on the Customer fourteen days after the date of delivery of the notice.
18. Entire Agreement
These Terms and Conditions of Trade constitute the entire agreement and supersede and extinguish all prior agreements and understandings between the Vendor and the Customer.
These Terms and Conditions of Trade will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand Courts will have exclusive jurisdiction over any dispute in relation to the Goods.