Terms of Trade
- DEFINITIONS
1.1 “Business Hours” means the hours of 8.30am to 5.00pm.
1.2 “Client” means any person or entity purchasing Goods and/or Services from Xuba.
1.3 “Goods” means all goods supplied or to be supplied by Xuba to the Client and shall include, without limitation, all computer Hardware and computer Software.
1.4 “Hardware” means any physical piece of electronic computing componentry, whether individually or as part of an assembled computer system, a standalone computing device or peripheral.
1.5 “Intellectual Property” means all or any of the following: trademarks and applications for registration of trademarks, trade name(s), patents and applications for patents, plant variety rights, know-how, being technical and other information or experience or trade secrets, copyright in any written material, plans, software code or other work, designs, whether or not registered or protected by copyright, and any other intellectual property.
1.6 “New Intellectual Property” means any Intellectual Property created or existing as a result of, or in connection with, Xuba carrying out the Services.
1.7 “Price” means the price payable for the Goods and Services by the Client to Xuba including without limitation all disbursements and labour charges and is exclusive of GST.
1.8 “Professional Services” means all services and advice provided or to be provided by Xuba to the Client and shall include without limitation general IT consulting, IT system engineering, IT compatibility, IT infrastructure analysis, IT health checks and other similar IT services. For specific projects, the parties may execute a specific proposal to further describe the Services.
1.9 “Services” means Support Services and Professional Services.
1.10 “Software” means machine readable code, compiled to create a computer program (or part thereof), whether installed locally or remotely via internet or other platform, including without limitation any Updates, Upgrades and, to the extent that they relate to Software, Work Around’s, and any other software code provided by Xuba, including as part of any Services.
1.11 “Support Services” means the support that is available for purchase by the Client, and if so purchased, as described in a Support Services Schedule signed by Xuba and the Client, from time to time. Should the parties not have signed a Support Services Schedule, Xuba shall not be obliged to provide any support related services.
1.12 “Terms of Trade” means these terms of trade, together with any executed Support Services Schedules and/or Proposals.
1.13 “Update” means a routine update to Software released by a third party manufacturer, which is generally of a minor nature.
1.14 “Upgrade” means a routine upgrade to Software released by a third party manufacturer, which is generally of a major nature.
1.15 “Work Around” means manipulation of the settings and configuration of Software or Hardware to bring such Software or Hardware back to an operating manner, but which may not be in accordance with the relevant specification.
1.16 “Working Days” means any day (other than a Saturday or Sunday) on which registered trading banks are open for business in New Zealand.
1.17 “Xuba” means Xuba Limited and any employees of Xuba.
2. ACCEPTANCE
2.1 The parties agree that the Client will be deemed to have accepted these Terms & Conditions of Trade when the Service Level Agreement and/or Quote is signed by someone authorised to accept Service Level Agreement and/or Quote by Xuba.
2.2 Any instructions received by Xuba from the Client for the order or supply of Goods and Services shall, subject to clause 2.2, constitute a binding contract and acceptance of the terms and conditions contained herein.
2.3 Xuba reserves the right to refuse to supply the Client with any Goods or Services at any time without giving reasons for such refusal.
3. PRICING
3.1 Professional Services shall be charged for each hour in accordance with Xuba’s standard labour charges that may be set and amended from time to time by Xuba, or separately agreed by the parties in a Support Services Schedule, from time to time. In addition to labour, Xuba shall charge the Client for any Goods supplied by it, that were used within the course of providing Professional Services.
3.2 If a quotation is given by Xuba for Goods and/or Services:
3.2.1 unless otherwise agreed, the quotation shall be valid for thirty (30) days from the date of issue;
3.2.2 the quotation shall be exclusive of goods and services tax unless specifically stated to the contrary; and
3.2.3 the Client acknowledges that any quotation given by Xuba is based on Xuba’s knowledge at the time the quotation is given, is Xuba’s best estimate only and can be varied by Xuba if any circumstances change or the Client requires any additional Goods or Services; and
3.2.4 such quotation may be accepted by the Client issuing a purchase order to Xuba that references the applicable quotation and is received by Xuba within the timeframe set out within clause 3.2.1.
4. PAYMENT
4.1 Upon receipt of completion of services in accordance with the acceptance of the quotation, Xuba will invoice the Client on the last day of the month.
4.2 The Client shall pay the Price set out in the invoice for Goods and Services, plus any GST payable on the Price, on or before the 20th day of the month following the date of the invoice (Due Date).
4.3 Xuba, prior to supplying the Goods and Services may require payment of the full Price in advance or progress payments to be made at various stages during the supply. In the event that the Client fails to meet any requirement for payment, Xuba may refuse to commence or continue supply to the Client.
4.4 Xuba may impose a credit limit (Credit Limit) at its sole discretion for the Client’s account from time to time, and may alter the Credit Limit without notice. The Client acknowledges that staying within the Credit Limit is the Client’s sole responsibility and Xuba accepts no responsibility for any account going into excess of the Credit Limit.
5. DELIVERY AND RISK
5.1 Any delivery timeframe stated by Xuba is an estimate only, and Xuba shall not be liable should delivery take place earlier or later than stated.
5.2 Xuba, the manufacturer, third party or agent shall deliver Goods to the Clients nominated premises if delivery has been included within the accepted quotation. If delivery has not been included, the Client shall be required to collect the Goods from Xuba, the manufacturer, third party or agent, as specified by Xuba from time to time, at the Clients expense. The Client acknowledges that such location may be outside New Zealand.
5.3 Risk in any Goods and Services supplied by Xuba shall pass when the Goods and Services are delivered to the Client at the nominated premises, or collected by the Client from Xuba, the manufacturer, third party or agent as set out above, and it shall be the Client’s obligation to insure the Goods from that time.
6. CANCELLATION
6.1 Purchase orders placed with Xuba by the Client cannot be cancelled without the written approval of Xuba. In the event that Xuba accepts the cancellation of any order placed, it shall be entitled to charge a reasonable fee for any work done or expenditure incurred on behalf of Xuba to the date of the cancellation in reliance on the order including a fee for the processing and acceptance of the Client’s order and request for cancellation.
6.2 Xuba may cancel an order at any time by Xuba giving the Client written notice. The Client shall indemnify Xuba against all claims and loss of any kind whatsoever however caused or arising as a result of this clause brought by any person in connection with any cancellation by Xuba, its agents or employees in connection with the cancelled Goods and Services.
7. GOODS WARRANTY
7.1 All Goods installed by Xuba shall be installed in accordance with the manufacturer’s instructions or standard industry practice, and a manufacturer’s warranty may apply.
7.2 For the avoidance of doubt, Xuba is not liable for any warranty provided by any manufacturer. Xuba may, in Xuba’s discretion, provide reasonable assistance to the Client to make a claim against such manufacturer’s warranty.
8. SERVICES WARRANTIES
8.1 Xuba warrants that it shall perform all Services in a professional manner and in accordance with generally accepted industry best practice.
8.2 Should the Services be carried out at the Clients site, or other site at the direction of the Client, the Client warrants that such site is safe and secure, and in compliance with all applicable occupational safety and health legislation.
9. CONSUMER LEGISLATION & LIABILITY
9.1 The statutory guarantees contained in the Consumer Guarantees Act 1993 are excluded to the maximum extent permitted where the Client acquires Goods and Services from Xuba for the purposes of a business in terms of section 2 and 43 of that Act
9.2 The Consumer Guarantees Act 1993, the Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Xuba 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 Xuba, Xuba’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.
9.3 Except as otherwise provided by clause 9.2 Xuba shall not be liable for any loss of data, consequential loss whether suffered or incurred by the Client 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 and Services provided by Xuba to the Client.
9.4 Except as otherwise provided by clause 9.2, in the event that Xuba is found liable for the loss or damage set out in clause 9.3, such liability shall be limited to the Price paid by the Client to Xuba for the Goods and/or Services that are the subject matter of the claim.
9.5 The Client indemnifies Xuba in respect of all liabilities, costs (including but not limited to full costs of any fees between solicitor and client or debt collection agency fees), disbursements and other expenses incurred by Xuba, arising out of or incidental to a breach of these Terms of Trade or default by the Client.
9.6 For the avoidance of doubt, it is the Clients sole responsibility to manage its internal processes, procedures or requirements in relation to data backup, data recovery and disaster recovery, and to ensure the protection, confidentiality or security of its data or information. Notwithstanding anything else in these terms of trade, in no circumstances shall Xuba be liable for any data loss, restoration, recovery, reconstitution, recreation of data, or other similar and associated loss.
10. DEFAULT
10.1 The following shall constitute defaults by the Client:
10.1.1 non-payment of any monies by the Due Date;
10.1.2 the Client intimates that it will not pay any sum by the Due Date;
10.1.3 the Client exceeds its Credit Limit;
10.1.4 any Goods are seized by any other creditor of the Client or any other creditor intimates that it intends to seize Goods;
10.1.5 any Goods in the possession of the Client are materially damaged while any sum due from the Client to Xuba remains unpaid;
10.1.6 the Client is bankrupted or put Into liquidation or a receiver is appointed to any of the Client’s assets;
10.1.7 a Court judgment is entered against the Client and remains unsatisfied for seven (7) days; and
10.1.8 any material adverse change in the financial position of the Client.
10.2 If the Client has breached or is in breach of these Terms of Trade, then without prejudice to Xuba’s other rights and remedies under these Terms of Trade or at law, Xuba may (at Xuba’s sole discretion) take any one or more of the following actions:
10.2.1 cancel these Terms of Trade;
10.2.2 refuse to supply Goods and Services to the Client or only continue to supply Goods and Services on a cash on delivery or a cash up front basis;
10.2.3 impose a Credit Limit in accordance with clause 4.4;
10.2.4 require the Client to provide a guarantor in accordance with clause 12; or
10.2.5 remove or repossess Goods in accordance with clause 11.4.
10.3 Xuba may seek reimbursement from the Client for any costs, charges or expenses (including legal costs as between solicitor and client and any debt collection agency fees) incurred by Xuba or any third party in consequence of or in connection with any default or any breach of these Terms of Trade by the Client including, without limitation, the enforcement by Xuba of any power, right or remedy conferred upon Xuba by law or by these Terms of Trade.
11. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
11.1 Title in any Goods supplied by Xuba passes to the Client only when the Client has made payment in full for all Goods provided by Xuba and of all other sums due to Xuba by the Client on any account whatsoever. Until all sums due to Xuba by the Client have been paid in full, Xuba has a security interest in all Goods.
11.2 The Client gives Xuba a security interest over:
11.2.1 all property that Xuba has performed Services on or to, or in which Goods supplied or financed by Xuba have been attached or incorporated; and
11.3 The Client agrees to:
11.3.1 if required by Xuba, cooperate in good faith with Xuba to execute the documentation required to register any security interest in favour of Xuba on the Personal Property Securities Register and protect Xuba’s interest in the Goods supplied; and
11.3.2 waive any right to receive a copy of the verification statement, pursuant to s148 of the Personal Property Securities Act 1999.
11.4 The Client gives irrevocable authority to Xuba to enter any premises occupied by the Client or on which Goods are situated at any reasonable time after default by the Client or before default if Xuba believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated. Xuba shall not be liable for any costs, damages, expenses or losses incurred by the Client 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.
12. PERSONAL GUARANTEES
12.1 Xuba may at any time require these Terms of Trade to be executed by one or more Guarantor of the Client that are suitable in Xuba’s reasonable opinion. For the avoidance of doubt, suitability of a Guarantor may include, but is not limited to, examinations by Xuba of such factors as:
12.1.1 the proposed Guarantor’s then current financial position;
12.1.2 any assets then currently held by the proposed Guarantor;
12.1.3 the proposed Guarantor’s credit history; and
12.1.4 any other matter that Xuba considers relevant.
12.2 If the Client is a company, partnership or trust, the director(s), partner(s) or trustee(s) signing these Terms of Trade, in consideration for Xuba agreeing to supply Goods and Services and grant credit to the Client, also sign these Terms of Trade in their personal capacity as Guarantors.
12.3 Any person, company or other entity executing these Terms of Trade as a Guarantor jointly and severally undertakes as principal debtors to Xuba to pay any and all monies now or hereafter owed by the Client to Xuba and indemnify Xuba against non-payment by the Client. Any liability of a Guarantor hereto shall not exclude the Client in any way whatsoever from the liabilities and obligations contained in these Terms of Trade. The Guarantors and Client shall be jointly and severally liable under the terms and conditions of these Terms of Trade and for payment of all sums due hereunder.
13. COLLECTION AND USE OF INFORMATION
13.1 The Client authorises Xuba to collect, retain and use any information about the Client, for the purpose of assessing the Clients credit worthiness, enforcing any rights under these Terms of Trade, or marketing any of Xuba’s Goods and Services (including without limitation by electronic means). The Client may opt out of such electronic marketing by notifying Xuba.
13.2 If the Client is required to provide a guarantor by Xuba, the Client shall procure and provide any additional information in relation to such guarantor requested by Xuba, for the purpose of assessing the guarantor’s credit worthiness and enforcing any rights under these Terms of Trade. The Client warrants that it has all necessary consents or authorisations required to provide such information to Xuba for this purpose.
13.3 If the Client is required to provide, and does so provide, information in relation to its employees, contractors or agents, to allow Xuba to complete the Services set out in these Terms of Trade, the Client warrants that it has all necessary consents or authorisations required to provide such information to Xuba for this purpose.
13.4 The Client authorises Xuba to disclose any information obtained to any person for the purposes set out in clause 13.1.
13.5 Where the Client is a natural person the authorities under clauses 13.1 and 13.3 are authorities or consents for the purposes of the Privacy Act 1993.
14. MANUFACTURER TERMS
14.1 All third party Hardware sold by Xuba to the Client, and third party Software procured by Xuba for the Clients use, are manufactured by third parties, and are subject to the terms and conditions of use of those manufacturers, which may include, without limitation, end user licence agreements, support agreements, interoperability matrices and/or other requirements of use (Manufacturer Terms). Depending on the requirements of the manufacturer, the Manufacturer Terms may be entered into with Xuba or directly with the manufacturer. The Client shall be deemed to accept such additional terms and conditions upon delivery or collection (as applicable) of the Goods. Xuba will use reasonable endeavours to make such Manufacturer Terms available to the Client as early as reasonably possible. Should the Client wish to negotiate such Manufacturer Terms, the Client must do so directly with the manufacturer concerned.
14.2 Should Xuba licence any Software to the Client as part of these Terms of Trade, such Software shall be subject to the end user licence agreement and/or other terms and conditions distributed with such Software, and available upon request from Xuba.
15. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
15.1 All Intellectual Property owned by a party prior to entering into these Terms of Trade shall remain the property of that party. The parties agree that any New Intellectual Property created by Xuba in carrying out the Services shall be the property of Xuba and the Client shall have no right or claim to the New Intellectual Property.
15.2 Subject to the payment of the Price of all invoiced Goods and Services, Xuba grants the Client, for their internal business purposes only, a non-exclusive, worldwide, royalty free licence to use, modify and copy the New Intellectual Property created as part of any Services provided.
15.3 The Client warrants that it has all necessary third party software licences required to enable Xuba to perform the Services, if such Services don’t relate to Software purchased pursuant to these Terms of Trade.
15.4 Xuba may use diagnostic software from time to time, to assist it in the performance of the Services. The Client consents to Xuba installing and running such software on the Client’s IT system. Such diagnostic software remains the sole and exclusive property of Xuba, and shall not form part of any software licence contained within, or associated with, these Terms of Trade. Any output from the diagnostic software, and any Intellectual Property contained within such output, shall be owned by Xuba, and such output may only be used by the Client upon the specific consent of Xuba, and Xuba may impose any use restrictions that it deems fit.
15.5 All Intellectual Property and other information belonging to the parties (including but not limited to these Terms of Trade) which by designation or by its nature is intended to be treated as confidential will be confidential information for the purposes of these Terms of Trade (Confidential Information).
15.6 The Client shall not without the prior written consent of Xuba disclose any Confidential Information to any third party. Xuba may disclose such Confidential Information to its group companies (including subsidiaries and parent companies), to any subcontractors or independent contractors, and as otherwise reasonably required to comply with its obligations under these Terms of Trade. Should either party disclose information as authorised pursuant to these Terms of Trade, the disclosing party shall ensure that the receiving party observes not less than equivalent obligations of confidentiality as those contained in this Agreement.
16. DISPUTES
16.1 In the event of any dispute between the parties in relation to these Terms of Trade (but excluding the payment of the Price) the parties will first seek to resolve such dispute by promptly giving notice to the other party and cooperatively endeavour to resolve the dispute. If the dispute remains unresolved the parties will first seek a resolution through the use of mediation or other informal method of resolution before pursuing arbitration or resolution through the Courts.
17. MISCELLANEOUS
17.1 Xuba shall not be liable for delay or failure to perform its obligations directly or indirectly if the cause of the delay or failure is beyond Xuba’s control including without limitation “acts of god”, wars or failure of third parties such as suppliers or subcontractors.
17.2 Notices, communication documents or demands required to be made or served pursuant to this Agreement shall be in writing signed by the party giving the notice or by any officer or solicitor of that party. Any notice or document shall be deemed to be duly given or made:
17.2.1 if delivered by hand, when so delivered;
17.2.2 if sent by post, on the third Working Day following posting; or
17.2.3 in the case of a communication by facsimile when transmitted with no indication of incomplete transmission to the recipient’s last known facsimile number.
17.3 Except as expressly set out within these Terms of Trade, notices may not be given by email. Notices, communication documents or demands shall be given to the parties, in the case of Xuba, at its registered address, and in the case of the Client, if it is a company at its registered address, or if it is an individual, at their most recent residential address provided by that individual to Xuba.
17.4 Failure by Xuba to enforce any of the terms and conditions contained in these Terms of Trade shall not be deemed to be a waiver of any of the rights or obligations Xuba has under these Terms of Trade.
17.5 Xuba may subcontract any or all of the Services, delivery of Goods or other obligation pursuant to these Terms of Trade to any third party, in its discretion. Xuba will at all times remain responsible for the subcontractors compliance with these Terms of Trade.
17.6 If any provision of these Terms of Trade 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.
17.7 These terms and conditions of trade shall be governed by the laws of New Zealand, and the courts of New Zealand shall have non-exclusive jurisdiction to determine any dispute arising out of the subject matter of these Terms of Trade.
17.8 Reference to any Statutes includes any later amendments or changes to those Statutes.
17.9 The Client may not assign its rights or obligations pursuant to these Terms of Trade, without obtaining the prior written consent of Xuba. Any attempted assignment shall not have effect, and shall be null and void.
17.10 Xuba may from time to time amend these Terms of Trade by giving the Client notice in writing. No other amendment shall have effect unless recorded in writing and signed by the parties.