Infrastructure Asset Management Systems Limited (IAMSL)
TERMS OF TRADE
1. DEFINITIONS AND INTERPRETATION
‘IAMSL” means Infrastructure Asset Management Systems Limited (NZCN 1366574).
“Customer” means the person who orders or purchases Goods or Services from IAMSL, and where the Customer comprises two or more persons, means those persons jointly and severally.
“Goods” means any goods provided by or on behalf of IAMSL to a Customer.
“Guarantor” means any guarantor of the Customer as further described in clause 7.
“Order” means an offer by the Customer to purchase Goods or Services accepted by IAMSL or a Quote accepted by the Customer.
“Personal Information” has the meaning given to it in the Privacy Act 1993.
“Personnel” means a party’s directors, employees, contractors or agents.
“PPS Act” means the Personal Property Securities Act 1999.
“Quote” means a written offer from IAMSL to the Customer to supply Goods or Services for a specified price subject to any terms and conditions of such offer.
“Services” means any services provided by or on behalf of IAMSL in accordance with an Order.
Including and similar words do not imply limitation.
2.1 All Orders constitute a binding contract on theseTerms of Trade, which expressly supersede and exclude any Customer terms of purchase or similar documents.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer and each Guarantor (if any) authorise IAMSL to collect, retain and use any information about the Customer and any Guarantor, for the purpose ofsupplying Goods or Services, assessing the Customer’s credit worthiness, enforcing any rights under these Terms of Trade or marketing any goods or services IAMSL thinks might be of interest to the Customer.
3.2 The Customer and any Guarantor authorise IAMSL to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the information obtained in accordance with clause 3.1 is Personal Information, the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
3.4 The Customer and any Guarantorhave the right to access Personal Information that IAMSL holds about them and to request correction of it if the Personal Information is incorrect.
4. QUOTES, ORDERS, PRICING & ESTIMATES
4.1 These Terms of Trade apply to all Goods and Services supplied by IAMSL. A Customer’s acceptance of a Quote constitutes agreement to purchase Goods or Services on these Terms of Trade. In the event of any inconsistency between a Quote and the these Terms of Trade, the terms set out in the Quote will prevail, to the extent of that inconsistency.
4.2 IAMSL may, in whole or in part, decline any Order in its sole discretion.
4.3 The price of Goods and Services is as specified in an Order or Quote as applicable.
4.4 Where no price is stated in writing, the price of Goods or Services will be IAMSL’s standard prices for those Goods or Services as at the time the Goods or Services are provided.
4.5 Unless otherwise stated, prices exclude:
(a) delivery; and
(b) taxes (including GST), duties,or any other levies, whether they are imposed or brought into force before or after acceptance of an Order,
which, if chargeable, are payable by the Customer.
4.6 A Quote may be withdrawn or varied, by IAMSL in its sole discretion, in whole or in part, at any time before the Quote has been accepted in writing by the Customer.
4.7 All Quotes are based on rates and charges in effect at the date of the relevant Quote. Any increase in rates or charges (including sub-contracted labour, materials and fuel) shall result in an equivalent increase in the quoted price.
4.8 A Quote shall lapse if not accepted within 30 days from the date of that Quote (or any shorter period specified in the Quote).
4.9 An estimate as to price is not binding on IAMSL.
4.10 Where a Quote includes an estimate of quantities and the actual quantity supplied is materially different from that estimated, IAMSL reserves the right to revise the quoted price.
4.11 Quotes are prepared in accordance with information provided to IAMSL by the Customer and IAMSL will not be liable nor will it be bound by the Quote where:
(a) such information is inaccurate or any information is omitted; or
(b) the Customer makes any variations which result in the work being different from that quoted for.
4.12 Where Goods or Services are required in addition to those specified in an Order the Customer agrees to pay for the additional cost of such Goodsor Services.
5.1 A deposit equivalent to the total cost of any Goods to be supplied together with a 50% deposit of the total cost of the Services is to be paid to IAMSL before any Goods or Services are provided to the Customer.
5.2 Payment for Services, less any deposit paid, shall be within 7 days from the date of IAMSL’s invoice. Time for payment is of the essence.
5.3 Payment by cheque or by any type of bank transfer will not be considered payment until the payment has been fully cleared through the banking system into IAMSL’s account.
5.4 IAMSL reserves the right to withhold the release of any engineering reports purchased by a Customer until all amounts owed by the Customer are paid in full.
5.5 If payment is not made in full by the due date, IAMSL is entitled to charge the Customer interest on the unpaid overdue balance from the due date for payment at the rate of 5% per annum above the current commercial overdraft rate charged by IAMSL’s bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by IAMSL.
5.6 The Customer shall be liable for any collection costs incurred by IAMSL in recovering any unpaid sums owing including full solicitor-client costs.
5.7 The Customer may not set off any monies claimed to be owed by IAMSL to the Customer against sums owed by the Customer to IAMSL.
6.1 For the purposes of these Terms of Trade a “Default Event” shall be one or more of the following:
(a) any default by the Customer under these Terms of Trade,includinga failure to make payment;
(b) the Customer becomes insolvent or is adjudged bankrupt;
(c) the Customer ceases or threatens to cease to carry on its business;
(d) a receiver, liquidator, official assignee or statutory manager of the Customer’s assets is appointed;
(e) the Customer makes or proposes an arrangement or compromise with creditors;
(f) any judgement of any Court which is not stayed or satisfied;
(g) a change in the effective control or management of the Customer, without IAMSL’s prior written consent;
(h) any other event which in the sole discretion of IAMSL gives rise to concern as to the timely payment of the Customer’s debts.
6.2 Where a Default Event occurs all amounts payable to IAMSL become due to IAMSL immediately. In addition,and without prejudice to any other remedies,IAMSL may:
(a) demand payment of the arrears as well as payment in advance for any undelivered Goods or Services before delivery of those Goods or Services;
(b) suspend or cancel the Customer’s account;
(c) cancel any outstanding Orders (in whole or in part);
(d) appoint a receiver in respect of the Goods (including the proceeds of the same). Any receiver so appointed may take possession of the Goods and re-sell them and otherwise exercise the rights conferred by law on thereceiver.
6.3 Notwithstanding any passing of time since the Default Event IAMSL can still invoke the provisions of this clause 6 at any time.
6.4 The Customer shall pay all costs incurred by IAMSL including solicitor-client costs and debt collection costs incurred in the enforcement of these Terms of Trade.
7. PERSONAL GUARANTEE
7.1 Where the Customer is a company, the directors of the Customer, by signing in their personal capacity at the bottom of these Terms of Trade, undertake to personally pay IAMSL the unpaid overdue balance and any interest accrued immediately on IAMSL written request. The directors shall also be liable for full collection costs including full solicitor-client costs.
7.2 Where more than one director has signed, each shall be jointly and severally liable.
8. OWNERSHIP OF GOODS AND SECURITY
8.1 Risk in any Goods purchased by the Customer shall pass upon delivery.
8.2 Title to any Goods and any proceeds in respect of a disposition of the Goods is retained by IAMSL until full payment is received for all amounts owing in respect of all Goods supplied.
8.3 The Customer agrees that this clause 8 constitutes a security interest for the purposes of the PPS Act.
8.4 The Customer shall promptly execute any document and provide any information required from time to time by IAMSL to enable them to take a perfected security interest in the Goods and their proceeds in priority to all othersecured parties.
8.5 The Customer shall meet all costs IAMSL incurs in filing a financing statement or financing change statement under the PPS Act in relation to goods supplied under these Terms of Trade on demand.
8.6 The parties agree that nothing in sections 114(1)(a), 133 and 134 of the PPS Act shall apply to these Terms of Trade.
8.7 The Customer waives its rights as a debtor under sections 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPS Act and its right to receive a verification statement confirming registration of a financing statement or to file a financing change statement relating to a security interest created by these Terms of Trade.
9. CONSUMER AND TRADELEGISLATION
9.1 Where Goods or Services are being supplied for the purposes of a business, the Customer agrees that the Consumer Guarantees Act 1993 will not apply.
9.2 The Customer acknowledges that the Goods and Services are purchased relying solely on the Customer’s skill and judgement and not on IAMSL’s representations or other conduct, except as expressly provided by IAMSL in writing. The purpose of this clause 9.2 is to expressly contract out of the Fair Trading Act 1986 to the maximum extent possible and the parties agree that it is fair and reasonable to do so.
9.3 The parties agree thatnothing in sections 129 or 138-141of the Contract and Commercial Law Act 2017 will apply to any Order.
10. LIMITATION OF LIABILITY
10.1 The liability of IAMSL to any party in respect of all claims for loss, damage or injury arising from breach of any of IAMSL’s obligations under these Terms of Trade or from any act or omission of IAMSL is to the maximum extent permitted by law limited, in each case, to at IAMSL’s sole discretion:
(a) replacement or repair of the affected Goods, or re-supply of the relevant Services;
(b) payment of the actual cost of replacing or repairing the affected Goods, or re-supplying the relevant Services; or
(c) the price of the affected Goods or relevant Services.
10.2 Notwithstanding clause 10.1, IAMSL shall not be liable for any claim in relation to an Order that was fulfilled more than 12 months prior to any claim being made, unless the Consumer Guarantees Act 1993 applies, in which case the remedies provided in that Act shall apply.
10.3 In no event will the measure of damages against IAMSL for any breach of these Terms of Trade, or any negligence or other action or contravention of any statutory or common law, include, nor will IAMSL be liable for:
(a) any breach of these Terms of Trade to the extent that the breach is attributable to the negligence, misconduct or breach of the Customer or its Personnel; or
(b) any loss or damage that results from a Force Majeure Event; or
(c) Any loss of profit or revenue, exemplary damages, deletion or corruption of electronically or digitally stored information, or without limiting the foregoing, any indirect or consequential loss or damage howsoever described or claimed.
10.4 To the extent the foregoing limitation does not apply or is not effective in accordance with its terms, then in no event will the aggregate liability of IAMSL to the Customer arising from all breaches of these Terms of Trade, tort (including negligence) or other action or contravention of any statute or otherwise, exceed the total amounts paid by the Customer to IAMSL over the 12 months preceding the Customer’s claim.
11. INTELLECTUAL PROPERTY
11.1 All intellectual property rights that may exist in the Goods or Services or that are created as a result of the fulfilment of an Order are and shall remain the sole and exclusive property of IAMSL(“IAMSL IP”).
11.2 To the extent necessary for the Customer to use any Goods or Services, IAMSL grants to the Customer a royalty-free, non-exclusive, non-transferable licence to use the IAMSL IP, provided that the Customer is not in breach of these Terms of Trade (in which case IAMSL may suspend or terminate the licence granted under this clause 11.2).
11.3 The Customer acknowledges that the IAMSL IP constitutes primary infrastructure in IAMSL’s business. The Customer will not attempt to copy, modify, transfer, sublicence, reverse engineer, decompile or deconstruct the IAMSL IP.
12.1 The Customer is not entitled to cancel an Order without the written agreement of IAMSL where:
(a) manufacture of made-to-order Goods has commenced; or
(b) such Order comprises Goods manufactured by a third party.
12.2 In the case of made-to-order Goods, IAMSL may require the Customer to make a full upfront payment for the Goods or to pay a substantial deposit before IAMSL commences manufacture of the Goods, and the Customer is liable to pay for the full amount of the Goods ordered, whether or not the Customer takes delivery of all such Goods.
12.3 Where the Customer cancels any other Order, IAMSL is entitled to deduct from any money already paid by the Customer an amount that represents the costs already incurred by IAMSL in relation to that Order.
13.1 Each party agrees to:
(a) keep the Confidential Information of the other party disclosed to it strictly confidential;
(b) to use that Confidential Information solely for the purpose of performing its obligations or obtaining the benefits under these Terms of Trade;
(c) immediately notify the other party of any breach or possible breach of confidentiality; and
(d) be responsible and liable for the acts and default of is Personnel in respect of the other party’s Confidential Information.
13.2 “Confidential Information” means all information provided by or on behalf of a party (“Owner”) to the other party (“Recipient”) which is designated as confidential or which the recipient ought to reasonably know is confidential, including, non-public, commercially sensitive, or other secret information relating to the Owner’s business and affairs.
14.1 Unless otherwise agreed between the parties, IAMSL will supply the Goods and perform the Services during the normal working hours of 8am to 5pm Monday to Friday excluding any public holidays where either party usually resides or where the Goods or Services are to be provided. Any costs incurred by IAMSL if required by the Customer to work outside such hours shall be payable by the Customer.
15. FORCE MAJEURE
15.1 No claim or liability will arise against IAMSL under these Terms of Trade or any Order or Quote, if and to the extent that IAMSL’s failure or omission to carry out or observe any provisions of these Terms of Trade or any Order or Quote arises by reason of force majeure. “Force majeure” means any event outside the reasonable control of IAMSL and includes fires or other casualties or accidents, power outages, acts of God, strikes and lockouts, severe weather conditions, pandemics, delay in supply of materials or unavailability of materials, war or other violence, or the introduction of any law, order, regulation, demand or requirement of any governmental agency.
16.1 If IAMSL is to perform the Services at any location owned, leased or otherwise controlled by the Customer, the Customer will provide the following at the Customer’s expense:
(a) access to and the right to use the Customer’s facilities reasonably necessary for IAMSL to perform its obligations under these Terms of Trade;
(b) access to and sufficient time with any of the Customer’s Personnel necessary for IAMSL to perform its obligations under these Terms of Trade;
(c) a safe working environment to all IAMSL Personnel in compliance with all relevant legislation and regulations, including the Health & Safety at Work Act 2015.
16.2 IAMSL’s failure or delay to exercise or enforce any right it has under these Terms of Trade shall not operate as a waiver of IAMSL’s right to exercise or enforce such right or any other right in the future.
16.3 No waiver of any breach of these Terms of Trade by either party will be effective except an express waiver in writing signed by the party against whom enforcement of the waiver is sought. A waiver of either party’s rights or remedies due to any particular breach of any provision of these Terms of Trade will not be construed as a waiver of any other breach of the same or any other provision. Termination of these Terms of Trade will not operate as a waiver of any rights, powers or remedies of either party in respect of any breach giving rise to such termination or otherwise arising under these Terms of Trade prior to termination.
16.4 All the obligations contained in these Terms of Trade which are by their nature intended to and are capable of surviving the termination of these Terms of Trade or any Order will continue in full force and effect according to their terms.
16.5 These Terms of Trade may be signed in two or more counterparts (including email or facsimile copies), all of which when taken together will constitute one and the same document and a binding and enforceable agreement between the parties.
16.6 Any provision in these Terms of Trade that is held to be invalid or unenforceable for any reason shall be severed from, and shall not affect the remaining provisions of, these Terms of Trade.
16.7 IAMSL may, in its sole discretion, amend these terms from time to time by giving the customer 7 days’ notice.
16.8 The attached Schedule For Work (if any) forms part of these Terms of Trade.
16.9 These Terms of Trade will be governed by, take effect and be construed in accordance with the laws of New Zealand, and the parties submit to the exclusive jurisdiction of the New Zealand Courts.