Terms of Trade
The terms stated below also relate to our suppliers as well as APlus.
We have several suppliers with various differences, terms that are favourable to APlus will apply in any event.
Customer means the customer, any person acting on behalf of or with the authority of the customer, or any person purchasing Products from APlus.
If the Customer comprises more than one person, the obligations of the Customer under these Terms shall apply to all such persons jointly and severally.
APlus, we, us or our means APlus.
Force majeure means any circumstances or events beyond the reasonable control of APlus including without limitation, any acts of God, or the public enemy, flood, earthquake, storm, cyclone, tornado, hurricane, lightning, fire, explosion, epidemic, war, embargos, riot or civil disturbance, lock out, strikes, raw material shortage, breakdown of plant, transport or equipment, or other labour disputes or industrial actions.
Goods or Products includes all Information technology equipment and software supplied by APlus, whether under Licence or otherwise and all Products sold by APlus from time to time.
Quote means any quote we issue from time to time.
Terms means the terms and conditions contained in this document, as amended by us and published on our website www.aplusnz4.com from time to time.
(a) The Customer prior to the date hereof has warranted to APlus (and such warranty and representation is a precondition hereof) that it is intended that the Customer shall deal in the Products.
Any failure in this warranty may result in loss and damage to APlus.
(b) APlus shall supply to the Customer Products in such quantities and at such prices as shall be agreed between the parties from time to time upon the following terms and conditions.
(c) Terms and conditions contained in any form, order or other writing of the Customer and which are at variance with or additional to these terms and conditions are not binding upon APlus unless specifically accepted by APlus in writing.
(d) All prices are exclusive of Goods and Services Tax (“GST”) unless expressly stated to be otherwise.
(e) Where GST is payable in respect of any supply made by APlus to the Customer, the Customer must pay to APlus an additional amount equal to such GST liability.
(a) We may from time to time issue Quotes for the supply of the Products. All Quotes issued by us to you are subject to these Terms.
(b) Unless otherwise stated, any Quote will remain open for acceptance for the time stated on the Quote and where no time is stated, for 14 days, unless withdrawn by us earlier.
(c) A Quote may be accepted by signing and returning the Quote. If you accept a Quote, you are also accepting all of these Terms without amendment.
3. PRICE INCREASES AND ORDER CANCELLATION
(a) Amounts and prices stated on any Quote are those at the date of the Quote. If you require any changes to the Quote which affect the cost or rates for insurance, freight, cartage or shipping expenses, duties, exchange rates, sorting and stacking costs, costs of materials or any other amounts used to calculate the price or amounts stated on the Quote, or if those inputs increase in cost before acceptance or during the currency of our contract, any increase in those amounts are for your account and will increase the price accordingly.
(b) In addition, notwithstanding the period of validity of the Quote, APlus reserves the right to increase the price of any Product which is not already in stock to take into account the changes in price due to the cost or rates for insurance, freight, cartage or shipping expenses, duties, exchange rates, sorting and stacking costs, costs of materials and taxes or otherwise.
(c) APlus also reserves the right to increase or introduce new prices for all Products at any time. In the event that a Product is mistakenly listed at an incorrect price, APlus reserves the right to refuse or cancel any orders placed for the Product listed at the incorrect price, regardless of whether the order has been confirmed or a Quote provided.
(d) You may not cancel orders for goods that are not standard stocked items. These products include, but are not limited too, software, service packs, HP and HPE CTOs, Apple CTOs, HP and HPE spares, any other special build/ configuration. You may not cancel other orders except with our written consent. Where we consent we reserve the right to recover costs incurred in servicing your order.
4. (PAYMENT) TRADING TERMS
APlus at its sole and absolute discretion may arrange physical delivery of Products to the Customer at the Customer’s business or home address, such delivery being at the sole cost of the Customer.
Delivery shall occur upon physical delivery to the Customer or if installation is required upon loading at the Customer’s premises.
The Customer shall be deemed to assume and shall be liable for loss or damage to Products from the time they are delivered to the premises of the customer and once the delivery documentation has been signed by an employee of either organisation.
(a) Payment for Products supplied or services rendered shall be made in full by the Customer to APlus without deduction or demand within the approved term as advised in writing by APlus or in the absence of a term approved by APlus by the twentieth (20th) of the month following the invoice date.
(b) If an unpaid invoice relates to a Subscription, the End User’s access to the online services may be suspended without notice until the Customer has made payment in full.
(c) If payment is not made in full by the due date, we are entitled to charge you interest on the unpaid overdue balance at the rate of 5% per annum above the current overdraft rate charged by our bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by us, and we may charge you costs (including collection costs and legal costs on a solicitor-client basis) and suspend delivery of further Products or performance of further services until the account is paid.
An account will be in default if it has not been paid within the approved terms or within twenty (20) days from the end of the month.
(d) If the Customer fails to make payment in accordance with sub-clause (a) for each and every supply of Products and each and every service rendered:
(i) APlus may in its sole and absolute discretion suspend the provision of credit to the Customer until all amounts owing by the Customer are paid in full;
(ii) All amounts owing by the Customer to APlus shall become due and payable forthwith without demand.
(e) A certificate signed by a Director for the time being of APlus stating the amount due (including any interest) by the Customer to APlus shall be conclusive evidence of the facts stated therein.
(f) If the Customer fails at any time to comply with these trading terms and conditions all amounts shall become ipso facto due, owing and payable without deduction or demand to APlus and APlus may cancel the provision of credit to the Customer forthwith without notice in addition to exercising any other rights it might have.
(g) All costs and disbursements incurred by us in recovering payment of any overdue account or in enforcing our rights under these Terms including, but not limited to, legal costs on a solicitor and client basis, are payable by you.
(h) Pending payment in full for the goods, the Customer:
(i) must not supply any of the goods to any person outside of its ordinary or usual course of business;
(ii) must not allow any person to have or acquire any security interest in the goods; (iii) must insure the goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Customer carries on business;
(iv) must not remove, deface or obliterate any identifying plate, mark or number on the goods.
5. RETENTION OF TITLE
(a)(i) Notwithstanding any other clause contained herein the full legal and equitable title in the goods shall be retained by APlus its lawful successors in title and assigns and will only be transferred when the Customer’s indebtedness to APlus or its lawful agents for the purpose under this Agreement, together with any sales tax or interest payable is fully discharged.
(ii) Until the moment of receipt of full payment of all the Customer’s indebtedness as referred to in paragraph (a(i)) herein the Customer shall keep the goods for and on behalf of APlus.
(b) Notwithstanding any other clause contained herein, the Customer is responsible for insurance and risk in the Products from the earlier of the time they are received by a carrier for delivery to you or the time they are collected by the Customer or the Customer’s agent. All goods must be paid for notwithstanding the destruction thereof or any damage thereto however caused.
(c) The Customer shall ensure that the goods are stored in such a way that they are clearly identifiable as the property of APlus and are not intermingled with the property of the Customer or any other person. The Customer shall not in any way alter or treat the goods so as to change their quality or nature in any way until as aforesaid and further shall ensure that the goods remain clearly marked as APlus property.
(d) Payment of the amounts owed by the Customer to APlus under this Agreement shall be deemed to have been made when cash has been received or cheques for the price and all other moneys owing under this Agreement have been met and honoured in full.
(e)(i) APlus authorises the Customer to sell the goods as APlus fiduciary agent for the account of APlus only. The proceeds of sale are the property of APlus and the Customer shall hold such proceeds for and on behalf of APlus in a fiduciary capacity. The Customer shall keep separate records as to the goods sold and as to the amount(s) received.
(ii) While APlus retains full legal and equitable title in the goods the Customer shall not bail, pledge, mortgage, charge, grant a lien over, lease or assign the goods by any other way of security. Only sales pursuant to paragraph e(i) hereof are permitted.
(iii) Notwithstanding any period of credit allowed in APlus terms and conditions of sale, the Customer shall account to APlus for the purchase price of the goods, (or such part thereof as represents the goods on-sold) as soon as the goods (or any of them) are on-sold by the purchaser and the proceeds of such sale are received by the purchaser.
(f) The Customer shall notify APlus in writing of any intended sale of the Customer’s business, which includes or purports to include the goods as part of the Customer’s stock.
(g) In the event of the Customer failing to pay for the goods pursuant to this Agreement or the determination or repudiation of the contract (howsoever occurring) APlus is hereby irrevocably authorised to enter onto the premises of the Customer and re-possess the goods and any other goods in the Customer’s possession the property which is vested in APlus.
6. PPSR Registration
You agree that all Products supplied to you by us shall be subject to a purchase money security interest as that term is defined in the Personal Property Securities Act 1999 (“PPSA”) and we shall treat the security interest in the Products as continuing and subsisting security with priority over a registered general security and any unsecured creditors.
Accordingly, you grant us a security interest in the Products and in any proceeds arising from the sale of the Products or in any accessions in the Products or if the Products become an accession the accession and the Products, to secure your obligations to us including, but not limited to, your obligation to make payment for the Products.
You are responsible for all costs incurred by us in registering our interest under the PPSA and all costs of enforcement.
If we, pursuant to the PPSA, take all or any of the Products in satisfaction of your obligations to us you agree that you shall remain liable to us for the difference between the market value of the Products at the time they are first able to be sold by us free from all rights and interests of you and other persons pursuant to s 123(1) of the PPSA and the amount of your obligation for which you are in default.
You agree that you waive to the maximum extent possible at law the following rights under the PPSA:
receipt of a verification statement pursuant to s 148 and a statement of account under s 116;
to recover a surplus under s 119;
to receive notice from us to retain collateral under s 120(2) and to object to that proposal under s 121;
to redeem collateral under s 132;
to reinstate a security agreement under s 133 and 134;
to not have goods damaged or to be reimbursed in respect of such damage if we take possession of an accession or goods (see s 125 and 126);
to refuse permission to remove an accession until security is given by us for reimbursement as per s 127;
to receive notice of removal of an accession under s 129;
to apply to court for an order concerning removal of an accession;
any other right in favour of you that can be lawfully contracted out of under the PPSA You will immediately notify us of any change in your name, address, and contact person’s details to enable us to register a financing change statement if required. In the absence of such notification, the address we hold in our records is deemed to be your relevant address. You will not agree, encourage or allow any other person to register a financing statement without the express written consent of us and shall notify us as soon as you are aware of any other person taking steps to registering an interest in the Products.
(a) Save to the extent provided in sub-clause (c) below APlus shall not be liable to the Customer or to any other person whomsoever for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the Products (or any of them), parts of the Products, or otherwise, other than as expressly imposed by statute in terms of which it is not possible to limit or exclude liability. The provisions of Sale of Goods Act 1908 are hereby excluded.
(b) Notwithstanding the generality of (a) above, APlus expressly excludes liability for consequential loss or damage including but not limited to loss of profit, business, revenue, goodwill or anticipated savings.
(c) The sole liability of APlus for any loss as is contemplated by sub-clause (a) above shall be limited to the price or licence fee or other sum paid by the Customer to APlus for the Product licence or service from which such loss or damage directly arose.
(d) The Customer is not a consumer as that term is defined in the Consumer Guarantees Act 1993 and accordingly the Consumer Guarantees Act 1993 shall have no application to goods sold by APlus to the Customer.
(e) For the avoidance of any doubt, APlus does not warrant that the goods will be error free, the use of the goods shall be uninterrupted or that the goods will be fit for purpose. Any liability of APlus shall be in the case of goods be limited to the replacement of the goods or the supply of equivalent goods and in the case of services to the supply of the services again.
(a)Except in the case of delivery of wrong or defective Goods by the Company, no Goods shall be returned to the Company without the prior authorisation of the Company. The Company, at its sole discretion, may or may not give such authorisation and such authorisation if given, shall be subject to the following conditions:
(i) Where in the opinion of the Company Goods are not returned in the condition in which they were supplied (as supplied condition) any costs incurred by the Company in restoring Goods to as supplied condition are for the account of the Customer.
(ii) The imposition of a special fee to be determined by the Company (e) at its sole discretion to cover among other things, restocking charges and any loss the Company may incur in reselling such returned Goods.
(iii) Such other conditions as the Company may deem necessary.
(iv) The Customer shall give the Company written notice of any defect in the Goods within 5 working days following delivery of the Goods and return the defective Goods to the Company’s premises for inspection. The Company shall, in its sole discretion, either repair of replace the defective Goods at its own cost and expense, or refund the price paid for the Goods. If the Customer does not notify the Company of any defect in the Goods within 5 working days of delivery of the Goods, the Customer shall be deemed to have accepted those Goods as being free of defects.
(b) Relating to those Products subject to compliance with the provisions of (c), (d) and (e) below and subject also to the provisions of APlus Returns Procedure as set, that specifies that the product is current on the relevant Vendor/brand price list, and the goods are not opened or damaged.
(c) Each claim of the Customer for Return shall be dealt with under APlus Customer Returns Procedure. The Customer acknowledges that he is aware of the terms of the said Customer Returns Procedure and further acknowledges that his Agreement incorporates the provisions contained therein. Products to be sent or returned to the Customer following compliance with the Customer Returns Procedure shall be sent by APlus to the Customer by ordinary freight pre-paid, subject to (d) below. If the Customer requests the same to be sent by other than ordinary freight the excess cost of such accelerated or special freight shall be borne by the Customer.
(d) APlus shall have no liability for any damage or defects in the Products that have been caused by improper storage, warehousing or transport, or by neglect, abuse or improper use, installation, maintenance or unauthorised repair to our Products.
(e) Restocking fees may apply to certain items. APlus reserves the right to apply a minimum restocking fee of 10% of the invoiced value of the Product. No claims for returns will be accepted after the expiration of five working days from the delivery date. Returns will not be accepted unless a Return Authorisation (RA) number has been issued by APlus. Returns will not be accepted if returned after seven days of issuing the RA. Goods returned incomplete or not in a saleable condition, including original packaging and accessories (product manuals, software etc) will not be accepted even if a RA number has been issued. All software purchases and volatile hardware purchases (such as memory modules), where packaging has been opened, are neither refundable nor creditable. In the case of goods returned contrary to the terms and conditions of sale, credit may be provided solely at the discretion of APlus however no claim for refund will be entertained.
(f) Despite the provisions of clause 8(a), (b), in the event there is any discrepancy between the invoice and the Products supplied by APlus to the Customer pursuant to that invoice, the Customer must notify APlus of the discrepancy within fourteen (14) days of the date of the invoice. If APlus determines that there is a discrepancy for which the Customer needs to return some or all of the Products, APlus will provide written notice to the Customer identifying those Products that need to be returned and the Customer must return such Products within Five (5) days of written notice from APlus.
9. PATENTS, TRADEMARKS, COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges that any and all of the trademarks, trade names, patents, copyright and other intellectual property rights embodied in or in connection with the Products and any information, documentation, parts or software relating thereto are the property of APlus or such other manufacturer/supplier of any such rights and further acknowledges that APlus has the right to import and distribute the Products in Australia and New Zealand.
The Customer also acknowledges that such copyright and intellectual property rights and other rights belonging to APlus or other manufacturer/supplier as the case may be, are only used by the Customer with the consent of APlus or other manufacturer/supplier during the continuation of this Agreement and such consent extends only to use essential for the direct purposes of the proper implications of this Agreement. Upon expiry or termination hereof the Customer shall forthwith discontinue such use, without receipt of compensation for such discontinuation, and the Customer acknowledges that upon expiry or termination hereof any licence of intellectual property rights in software created or implied hereby will immediately cease.
The Customer shall not during or after the expiry or termination of the Agreement, without the prior written consent of APlus or other manufacturer/supplier use or adopt any name, trade name, trading style or commercial designation or design used by APlus or other manufacturer/supplier as the case may be nor shall the Customer repackage any Products, reproduce any artwork appearing on the package of any Products or copy sell or hire or offer for sale or hire a copy of the Products.
The Customer will comply with the terms of any licence agreement applicable to any part of the goods and the Customer shall not copy the goods in whole or in part except to make copies as are necessary for the purpose of a bona fide system backup and security.
10. CONFIDENTIAL INFORMATION
(a) APlus has imparted and may from time to time impart to the Customer certain confidential information and documentation relating to the Products, their marketing, use, maintenance, operation and software including technical specifications therefore and the Customer hereby agrees that it shall use such confidential information solely for the purposes of this Agreement and that during the operation of this Agreement or thereafter it shall not disclose, whether directly or indirectly, to any third party such information other than is required to carry out the purposes hereof.
(b) In the event that disclosure is necessary, the Customer will obtain from such third parties binding Agreements to maintain in confidence the information disclosed to the same extent at least as the Customer is so bound to APlus hereunder.
(c) The Customer agrees that immediately on expiry or termination hereof it shall cease to use and shall return or destroy (as APlus may instruct) such information and documentation and shall not itself or through any subsidiary, agent or other party sell, market, distribute, manufacture or otherwise deal with the Products or have the same manufactured for it based on any technical or confidential information supplied to it by APlus.
This Agreement shall not be assigned by the Customer whether voluntarily, involuntarily or by operation of law without the prior written consent of APlus. No such assignment by the Customer howsoever occurring shall relieve the assignor of its obligations hereunder.
Failure or neglect by APlus to enforce at any time the provisions hereof shall not be construed nor shall be deemed to be a waiver of APlus rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice APlus rights to take subsequent action.
In the event that any or any part of these terms, conditions or provisions shall be determined invalid, unlawful or unenforceable to any extent such terms, conditions or provisions shall be severed from the remaining terms and conditions, which shall continue to be valid and enforceable to the fullest extent permitted by law.
14. WHOLE AGREEMENT
This document supersedes any arrangements understandings provisions or Agreements made or existing between the Customer and APlus prior to or simultaneously herewith and constitutes the sole and entire Agreement between the parties and except as provided herein no variation, amendment, modification or addition to any of its terms shall be of any force or effect unless the same shall be in writing and signed by and on behalf of the Customer and APlus.
15. COMPLIANCE WITH APPLICABLE LAW The Parties agree that this Agreement and the provisions hereof shall be construed in accordance with the Laws of New Zealand.
16. INFORMATION AND ACCESS TO INDIVIDUALS CONSUMER ACCOUNTS
To the maximum extent permissible by law, the Customer waives all rights under the Privacy Act 1993 and consents to the collection, storage and provision of information by APlus to third parties. Such information may be used in respect of APlus attendances relating to the Products APlus provides to the Customer and for APlus our own statistical or marketing purposes, among other uses. Further, the Customer expressly consents to APlus using any personal information or any other information APlus holds on the Customer for the purposes of investigating the Customer’s creditworthiness including but not limited to conducting a credit check on the Customer. The Customer hereby authorises APlus to make enquires at any time and from time to time to a credit reporting agency relating to the Customer’s individual account should it be required and to contact the stated trade reference at any time.
17. PROVISION OF CREDIT
The provision of credit and/or the continued provision of credit by APlus to the Customer from time to time shall be in the absolute discretion of APlus. APlus may in its absolute discretion:
(a) Extend credit to the Customer; or
(b) Continue to extend credit to the Customer; or
(c) Extend and/or continue to extend credit to the Customer subject to the provision of security in a form acceptable to APlus; and/or
(d) At any time and from time to time vary or cancel the credit facility available to the Customer.
18. DIFFERENCES AND COMPLAINTS
Subject to the provisions of clause 4 APlus shall not be liable in respect of any difference or complaint arising out of this Agreement unless the Customer advises APlus in writing of the difference or complaints not later than seven (7) days after the date of the occurrence of the events or circumstances on which the difference or complaint is based.
19. ACCEPTANCE OF AGREEMENT
Upon presentation to APlus of a valid purchase order either in writing, verbally or by any other means as agreed upon by APlus, the customer indicates acceptance of these terms and conditions of sale and agrees to be irrevocably bound by it.
All orders for goods must be submitted by email, or entered through APlus online, unless otherwise agreed to by APlus. The purchase order should state the goods to be purchased, quantity ordered, price, contact person and delivery address.
21. PART DELIVERY
Where APlus makes a part delivery in respect of any order such delivery shall constitute a separate contract upon these terms and conditions of sale.
22. LIMITED WARRANTY
APlus warrants to the Customer that any manufacturers warranty in respect of any goods supplied will apply. To make a claim, the Customer must notify APlus that the goods are defective, whereupon APlus shall provide a RA number to be quoted by the Customer when returning defective goods to APlus. APlus sole obligation is, at its option, to either repair or replace the defective goods or return same to manufacturer for repair or replacement.
23. FORCE MAJEURE
APlus will not be liable for any delay or failure to perform its obligations under these Terms by reason of any Force majeure. Any suspension of performance by reason of this clause will be limited to the period during which the Force majeure exists and APlus will give notice of such Force majeure event to the Customer.
The terms of trade set out below govern all of the supplies of Products from APlus (“APlus”, “we”, “us”) to the dealer (“you, your”). They are effective from 1st October 2009 and will replace all earlier APlus terms of trade and any conditions contained in any document used by you and purporting to have contractual effect. Your acceptance of any Products from APlus indicates your continuing acceptance of these terms of trade. You warrant that you are a bona fide reseller of the Products that you acquire from APlus.
1.1. In these conditions, “Software” includes all relevant documentation, manuals, printed and written matter; “Supplier” means APlus suppliers; “Products” means computer hardware, peripherals, accessories, Software and other goods or services of any kind which are supplied by APlus to you primarily for resupply by you; “Website” means any internet website owned and operated by APlus.
1.2. Where you purchase any Products presented on the Website or otherwise use the Website, the Website trading terms, which incorporate these terms of trade, shall apply. Where you acquire goods or services supplied by other parties through the Website or through links on the Website, you do so on the condition that APlus is not liable to you in any way for those goods or services.
2. Price and Orders
2.1. Prices may be altered without notice.
2.2. APlus reserves the right to refuse to accept any order or any part of an order, and to deliver goods by instalments, in which case each instalment will comprise a separate contract and shall be paid for as if it were a separate order.
2.3 You may not cancel orders for goods including software and service packs which are not stock items. You may not cancel other orders except with our written consent. Where we consent we reserve the right to recover costs incurred in servicing your order.
3. Risk and delivery
3.1. You are responsible for insurance and risk in the Products from the earlier of the time they are received by a carrier for delivery to you or the time they are collected by you or your agent.
3.2. You agree to pay all delivery costs.
3.3. Where goods appear to be damaged or short-delivered you must contact the carrier and APlus immediately and supply to the carrier and to APlus a copy of the proof of delivery with the loss or damage described on it. All claims for shortage or damage during delivery must be confirmed in writing to APlus within 5 days of the date of delivery. Damaged goods must be made available for inspection by the carrier.
3.4. We will make every effort to ensure delivery of Products, or performance of services, is on time, but will not be liable to you for any loss or damage arising in any way from any delay in delivery or performance. Delay in delivery or performance does not entitle you to cancel any order.
3.5. Unless otherwise stated in writing, all Products will be box shipped and it is your responsibility to assemble, configure and install them.
3.6. Where you ask us to deliver goods directly to another person, that person takes possession of the goods for you as your agent, and you are still directly responsible to us under these terms of trade.
4.1. Unless we have agreed in writing to extend credit to you, you must pay by direct credit into a bank account nominated by us or credit card before supply.
4.2. Where we have agreed in writing to extend credit to you, you must pay in full by the due date checked under “terms of payment” on your application form (or if no due date is checked, within 7 days of the date of invoice), unless we have agreed in writing to different payment terms. Your payment is made only when funds have fully cleared through the banking system into our bank account. Payments which you make to us will be considered to be applied first to any amount owing in respect of service work, then to payment for any goods which have been purchased as inventory and which have been sold by you, then to payment for goods supplied by us which have not been sold by you. We may allocate your payments in this manner at any time after receipt even if we have sent you a statement which indicates payments are allocated in a different manner.
4.3. We may debit your account with reasonable costs incurred as a result of your choice of payment method.
4.4. We have sole discretion to determine the amount of credit we will extend to you at any time.
4.5. You agree to pay for the Products in full without deduction or setoff and to pay goods and services tax and any other government duties, levies or taxes in respect of the Products, whether these are incurred in New Zealand or elsewhere.
4.6. If payment is not made in full by the due date, we are entitled to charge you interest on the unpaid overdue balance at the rate of 5% per annum above the current overdraft rate charged by our bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by us, and we may charge you costs (including collection costs and legal costs on a solicitor-client basis) and suspend delivery of further Products or performance of further services until the account is paid.
4.7. Notwithstanding clauses 4.2 and 4.3 above, all payments shall immediately become due to us if you refuse to accept delivery of any Products without reasonable cause, if we reasonably believe that the information which you have given us in your application for credit is incorrect or no longer correct and you have failed to give us correct information satisfactory to us within 5 days of our request, if you sell or otherwise dispose of any goods which have not been paid for without our consent, if you become insolvent, commit any act of bankruptcy, if a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking, if you make or attempt to make an arrangement or composition with creditors, or if you fail to comply with any of the provisions of clause 6.
5.1. With the exception of Software which is subject to licence (where it is not intended that title should ever pass to you, but shall remain in APlus as principal or as agent for the software licensor), property and ownership in Products, whether in their original form or incorporated in or attached to another product will not pass to you but will remain with us until we receive payment in full of the purchase price of the Products and all other amounts that you owe to us for any reason.
5.2. Until property passes to you, you shall hold any Products in trust as fiduciary bailee for us and/or the software licensor, and store them in a manner to enable them to be identified and cross referenced to particular invoices.
5.3. Unless otherwise notified in writing, where goods are supplied to you as inventory or otherwise for resupply (including by way of attachment to or incorporation into manufactured or assembled goods) you are authorised to sell the Products in the ordinary course of your business, but you must hold any accounts receivable or other proceeds for our benefit. If you use any money proceeds to purchase replacement inventory, whether from APlus or a third party, you hold that replacement inventory and its proceeds as collateral for our benefit until all sums owing to us are paid.
5.4. Where you acquire any Products for your own use as equipment, you must tell us immediately in writing and you must not resell or part with possession of those Products before you have paid for them in full, unless we have given you written consent.
5.5. Where APlus reasonably believes you are or will be in breach of any part of clauses 4, 5 or 6 of these terms of trade:
(a) APlus or its agent may without notice enter any premises under your control to remove any Products which are the property of APlus, including Products installed in or attached to any other goods, using such force as is necessary, and without prejudice to any other of APlus rights;
(b) APlus may appoint a receiver of all or any part of the collateral (being Products supplied by APlus together with proceeds in any form) in accordance with clause 25 of the Auckland District Law Society Memorandum of General Terms and Conditions 6302, as amended from time to time. That clause is incorporated into these terms of trade in its entirety, together with any other clauses necessary for its operation. You indemnify APlus against all costs and claims in respect of its exercise of rights under this clause 5.
6.1. If we already have a perfected security interest in the products 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 Products that we supply to you. Our security interest covers the Products together with all proceeds, whether or not those Products have become accessions to other goods or processed or commingled into or mixed with other goods. The goods and services subject to the security interest will be described on our invoices. Where Products that we supply to you have become mixed with other similar goods supplied by other persons, you grant us a security interest in the mixed goods to the value of the Products in the mixture that we have supplied to you but which have not yet been paid for.
6.2. You agree that you will do all acts necessary and provide to us on request all information we require to register a financing statement over the Products and their proceeds of all kinds, and that you will advise
us immediately in writing of any changes to that information. You waive all rights to receive a copy of any verification statement of a financing statement.
6.3. You agree that you will supply us, within 2 business days of our written request, with copies of all security interests registered over your personal property, and you authorise us as your agent to request information from any secured party relating to any security interest which is held in any personal property which is or has been in your possession or control.
6.4. You agree that we 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 us, whether or not the change was initiated by you.
6.5. If we repossess goods under this agreement, we may retain those goods or dispose of them without notice to you or any other person, and, after deducting reasonable costs of sale, we will credit any surplus by way of setoff against any sums owing to us. We shall not be obliged to furnish you with the statement of account or to pay to any person other than you or your receiver or liquidator any sum in excess of the total amount you owe us at the time we credit your account. We will not be obliged to reinstate this agreement or resupply any repossessed inventory or equipment to you.
6.6. You authorise us to search the Personal Property Securities Register at any time for any information about you or (if you are a company) your parent or associated companies.
7.1. You acknowledge and agree that returns shall be accepted by us only in accordance with our returns policy as notified to you from time to time including on the Website, and that you may receive a full or partial credit for goods that have been returned to us only if, and to the extent that, we have consented in writing.
7.2 Where we agree to the return of goods you must return them in new condition in original undamaged packaging.
8.1. Goods are subject to the manufacturers’ warranties only (if any). We will pass on the benefit of those warranties to you, without being directly liable to you under any warranty. Manufacturer’s warranties are set out on the Website.
8.2. Where goods are subject to a return to base warranty, you are responsible for returning them to us or the manufacturer (as provided by the warranty) and you may be responsible for additional costs including (but not limited to) freight.
8.3. Any warranty may be voided by unreasonable use, damage or misuse (including problems caused by misuse or damage after the goods have left APlus care), negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorised repairs, modifications or the addition of hardware, software or consumables not supplied by APlus. You will not be entitled to the benefit of any warranty if any sum that you owe APlus for any reason is overdue.
9. Obligations to suppliers
9.1. We may impose certain conditions on you from time to time where our suppliers require us to do so.
10 Compliance to U.S. Export Laws and other relevant export control laws
10.1 Purchaser acknowledges and shall advise its customer that the product, equipment, technology and/or software (“Products”) may be subject to the controls of the United States Department of Commerce or other relevant export control laws, and that the Products may require authorisation prior to export, re-export or transfer in-country. Specifically, purchaser agrees that it will not export, re-export, transfer in-country or otherwise distribute Products, or direct products thereof, in violation of any export control laws or regulations of the United States. Purchaser warrants that it will not export, re-export or transfer in-country any Products with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear or ballistic weapons, or in a facility engaged in such activities, unless Purchaser has obtained prior approval from the Department of Commerce. Purchaser further warrants that it will not export, re-export or transfer in-country, directly or indirectly, any Products to embargoed countries or sell Products to companies
or individuals listed on a denial order issued by the United States.
11. Limitation of liability
11.1. The provisions of the Consumer Guarantees Act 1993 (“CGA”) shall not apply to any supply of Products to you, and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or otherwise implied by statute or common law will not apply and are excluded from these terms of trade.
11.2. APlus maximum liability to you (if any) shall be limited to the value of any faulty Products or services
supplied, and APlus and its employees, contractors and agents, any manufacturers of the Products or any of their materials or components and any licensors of Software or suppliers of services, will not be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This exclusion of liability includes, but is not limited to, costs (including costs of returning Products to APlus or to any manufacturer or licensor), consequential loss, loss of profits, damage caused by or arising from delays in manufacturing or delivery, faulty or delayed installation, unreasonable use, negligence (including a failure to do something which should have been done or to prevent something from happening), faulty design specifications or choice by you, and faulty materials, components, manufacture, compilation, or assembly of the Products.
11.3. It is your responsibility to ensure, and we will not be liable for, the functional integration or performance of systems containing components supplied by or through us.
11.4. We will not be liable to you for any losses caused by events beyond our reasonable control. We will not be required to settle a strike or lockout or other industrial disturbance against our wishes in order to benefit from this clause.
12. Your further obligations
12.1. Where you purchase any Products from us for resupply as, or incorporation into, goods or services ordinarily acquired for personal household or domestic use or consumption (“Consumer Products”) you warrant that:
(a) if you supply the Consumer Products directly to an end user/consumer you will do so using terms and conditions of supply which exclude liability for any claims under the CGA; and
(b) if your customer acquires any Products for resupply, you will ensure that your customer and each person in the distribution chain will exclude liability in its contract for supply for any claims under the CGA, but in each case only where the end user/consumer acquires Consumer Products for business purposes. You indemnify us and our Suppliers against any failure by you, your customers or any person in the distribution chain to properly contract out of liability to business end users/consumers under the CGA.
12.2. You indemnify us against all costs (including legal costs on a solicitor and own client basis) expenses, losses, damages or claims arising in any way as a result of your failure to comply with any part of these terms of trade.
13. Intellectual property and confidentiality
13.1. All intellectual property shall remain the property of APlus or any Supplier entitled to it, and neither APlus nor its Suppliers transfer any right, title or interest in the intellectual property to you.
13.2. You must not use any trade marks which are the property of APlus or its Suppliers, or any similar words or marks, or any combination of words which includes any of those trade marks or any similar words or marks, except to the extent authorised by APlus in writing.
13.3. You agree to dispatch the Products only under the trade marks under which they are supplied by APlus, and under no circumstances shall you apply any of the trade marks to any product which is not a genuine branded product supplied to you by APlus.
13.4. You must not cause or permit anything which may interfere with, damage or endanger the trade marks or other intellectual property rights of APlus or its Suppliers, or assist or allow others to do so.
13.5. You must advise APlus immediately when you become aware of any unauthorised use or attempted use by any person of the trade marks or other intellectual property rights of APlus or its Suppliers.
13.6. You may not register a trademark or use any business name incorporating the words “APlus” or “Zidoo”.
13.7. If your account with APlus is terminated, you must immediately discontinue use of any of the trade marks which are the property of APlus in any sign, or advertising and thereafter you shall not use those trade marks directly or indirectly in connection with your business.
13.8. You agree to ensure that all Confidential Information given by APlus to you is made available to your employees only on the basis that those employees at all times maintain strict confidentiality.
13.9. This clause 13 shall survive the termination of the Agreement.
14. APlus Online Username and Passwords
14.1 You must use the APlus Online website only for the purposes of your business.
14.2 You must keep your username and password for the APlus Online website strictly confidential. You must not disclose your username and/or password to any person other than your authorised employees. In particular, you must not disclose your username or password to any of your customers or resellers.
14.3 If you do disclose your username or password to anyone other than your employee or properly authorised agent, then APlus may bar you from using the APlus Online website or close your account with APlus. All goods or services ordered using your password will be charged to your account.
14.4 You must notify APlus immediately if you believe or suspect that unauthorised persons might have access to your username and/or password for the APlus Online website, and you must immediately change your password.
14.5 You are responsible for the consequences of all unauthorised use of your username and password.
15.1 You agree to APlus collecting, using and disclosing certain personal information about You for various purposes, including to:
assess credit worthiness;
supply the Products and services to You and the management of Your account, including suppliers;
communicate with You about the Products and services which APlus or its partners or affiliates may provide to You;
implement these Terms and the Credit Terms; and
comply with relevant laws.
15.2 APlus, at the written request of You, will provide You with access to any personal information relating to You held by APlus; and correct or amend any personal information relating to You held by APlus which is inaccurate or out of date.
15.3 You must, at APlus request, obtain any consents from, or provide notices to, individuals associated with You for APlus privacy compliance purposes.
16.1. APlus reserves the right to change these terms of trade from time to time.
16.2. If APlus fails to enforce any terms or to exercise its rights under these terms of trade at any time, APlus has not waived those rights.
16.3. If any provision of these terms of trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these terms of trade.
16.4. This agreement is governed by the laws of New Zealand and any dispute under it shall be subject to the exclusive jurisdiction of the Courts of New Zealand.