Terms of Trade
eXeed Ltd "Products" includes all Information technology equipment and software supplied by eXeed, whether under Licence or otherwise and all Products sold by eXeed from time to time.
1. GENERAL
(a) The Customer prior to the date hereof has warranted to eXeed (and such warranty and representation is a precondition hereof)
(b) That it is intended that the Customer shall deal in the Products. Any failure in this warranty may result in loss and damage to eXeed.
(c) eXeed 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.
(d) 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 eXeed unless specifically accepted by eXeed in writing.
(e) All prices are exclusive of Goods and Services Tax ("GST") unless expressly stated to be otherwise.
(f) Where GST is payable in respect of any supply made by eXeed to the Customer, the Customer must pay to eXeed an additional amount equal to such GST liability.
2. (PAYMENT) TRADING TERMS
The Customer at its own expense shall arrange collection of Products from eXeed at its premises. Alternatively, eXeed at its sole and absolute discretion may arrange physical delivery of Products to the Customer at the Customer's business address specified above, such delivery being at the sole cost of the Customer. 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 reseller or their customer and once the delivery documentation has been signed by an employee of either organization.
(a) Payment for Products supplied or services rendered shall be made in full by the Customer to eXeed without deduction or demand within the approved term as advised in writing by eXeed or in the absence of a term approved by eXeed within twenty days (20) days from statement date.
(b) "The Customer shall pay interest on all amounts due to eXeed which are in default at the rate of 2% above the then current overdraft rate of the ANZ, for accounts over $50,000.00." An account will be in default if it has not been paid within the approved terms or within fourteen (14) days from the statement date.
(c) 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) eXeed 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 eXeed shall become due and payable forthwith without demand:
(d) A certificate signed by a Director for the time being of eXeed stating the amount due (including any interest) by the Customer to eXeed shall be conclusive evidence of the facts stated therein.
(e) 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 eXeed and eXeed may cancel the provision of credit to the Customer forthwith without notice in addition to exercising any other rights it might have.
3. RETENTION OF TITLE
(a) (i) Notwithstanding any other clause contained herein the full legal and equitable title in the goods shall be retained by eXeed its lawful successors in title and assigns and will only be transferred when the Customer's indebtedness to eXeed 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 eXeed.
(b) Notwithstanding any other clause contained herein the risk in all goods shall pass to the Customer immediately upon delivery and 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 eXeed 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 eXeed property.
(d) Payment of the amounts owed by the Customer to eXeed 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) eXeed authorises the Customer to sell the goods as eXeed fiduciary agent for the account of eXeed only. The proceeds of sale are the property of eXeed and the Customer shall hold such proceeds for and on behalf of eXeed in a fiduciary capacity. The Customer shall keep separate records as to the goods sold and as to the amount(s) received. (ii) While eXeed 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 eXeed's terms and conditions of sale, the Customer shall account to eXeed 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 eXeed 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) eXeed 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 eXeed.
(h) The Customer acknowledges and permits eXeed to register its interest in the goods subject to this retention of title provision as a security interest as that term is defined in the Personal Property Securities Act 1999. The security interest shall be in respect of all goods and personal property supplied by eXeed from time to time to the Customer either prior to or subsequent to the Customer being bound by these Terms of Trade. The Customer acknowledges that eXeed may in accordance with this clause register their security interest in the Personal Property Securities Register so as to perfect that security interest.
4. LIABILITY
(a) Save to the extent provided in sub-clause (c) below eXeed 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.
(h) Notwithstanding the generality of (a) above, eXeed 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 eXeed 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 eXeed 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 be eXeed to the Customer
5. RETURNS
(a) The Customer must notify eXeed in writing of Products they wish to return within seven (7) days from the date of the invoice relating to that or those Products subject to compliance with the provisions of (h), (c) and (d) below and subject also to the provisions of eXeed’s Returns Procedure as set, that specifies that the product is current on HP’s price list, and the goods are not opened or damaged.
(b) Each claim of the Customer for Return shall be dealt with under eXeed’s 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 eXeed to the Customer by ordinary freight pre-paid, subject to (c) 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.
(c) eXeed 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.
(d) Any claims for returns must be made in writing within seven days of delivery of goods.
(e) Restocking fees may apply to certain items. No claims for returns will be accepted after the expiration of seven days from the delivery date. Returns will not be accepted unless a Return Authorisation (RA) number has been issued by eXeed. 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 eXeed however no claim for refund will be entertained.
6. PATENTS, TRADEMARKS, COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
(a) 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 eXeed or such other manufacturer/supplier of any such rights and further acknowledges that eXeed has the right to import and distribute the Products in Australia and New Zealand.
(b) The Customer also acknowledges that such copyright and intellectual property rights and other rights belonging to eXeed or other manufacturer/supplier as the case may be, are only used by the Customer with the consent of eXeed 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.
(c) The Customer shall not during or after the expiry or termination of the Agreement, without the prior written consent of eXeed or other manufacturer/supplier use or adopt any name, trade name, trading style or commercial designation or design used by eXeed 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.
(d) The Customer shall indemnify eXeed against all liabilities, costs and expenses which eXeed may incur as a result of work done in accordance with the Customer's specifications or as a result of the combination or use of the Products with other equipment parts or software not supplied by eXeed, involving infringement of any patent, copyright or other proprietary right.
7. CONFIDENTIAL INFORMATION
(a) eXeed 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 eXeed hereunder.
(c) The Customer agrees that immediately on expiry or termination hereof it shall cease to use and shall return or destroy (as eXeed 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 eXeed.
8. ASSIGNMENT
This Agreement shall not be assigned by the Customer whether voluntarily, involuntarily or by operation of law without the prior written consent of eXeed. No such assignment by the Customer howsoever occurring shall relieve the assignor of its obligations hereunder.
9. WAIVER
Failure or neglect by eXeed to enforce at any time the provisions hereof shall not be construed nor shall be deemed to be a waiver of eXeed's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice eXeed’s rights to take subsequent action.
10. SEVERABILITY
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.
11. WHOLE AGREEMENT
This document supersedes any arrangements understandings provisions or Agreements made or existing between the Customer and eXeed 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 eXeed.
12. 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.
13. ACCESS TO INDIVIDUALS CONSUMER ACCOUNTS
The Customer hereby authorises eXeed 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.
14. PROVISION OF CREDIT
The provision of credit and/or the continued provision of credit by eXeed to the Customer from time to time shall be in the absolute discretion of eXeed. eXeed may in its absolute discretion:
(i) Extend credit to the Customer; or (ii) Continue to extend credit to the Customer; or
(iii) Extend and/or continue to extend credit to the Customer subject to the provision of security in a form acceptable to eXeed; and/or
(iv) At any time and from time to time vary or cancel the credit facility available to the Customer.
15. DIFFERENCES AND COMPLAINTS
Subject to the provisions of Clause 4 eXeed shall not be liable in respect of any difference or complaint arising out of this Agreement unless the Customer advises eXeed 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.
16. ACCEPTANCE OF AGREEMENT
Upon presentation to eXeed of a valid purchase order either in writing, verbally or by any other means as agreed upon by eXeed, the customer indicates acceptance of these terms and conditions of sale and agrees to be irrevocably bound by it.
17. ORDERS
All orders for goods must be submitted on a written purchase order, or electronic order entered through eXeed online, unless otherwise agreed to by eXeed. The purchase order should state the goods to be purchased, quantity ordered, price, contact person and delivery address.
18. PART DELIVERY
Where eXeed makes a part delivery in respect of any order such delivery shall constitute a separate contract upon these terms and conditions of sale.
19. LIMITED WARRANTY
eXeed warrants to the Customer that any manufacturers warranty in respect of any goods supplied will apply. To make a claim, the Customer must notify eXeed that the goods are defective, whereupon eXeed shall provide a RA number to be quoted by the Customer when returning defective goods to eXeed. eXeed’s sole obligation is, at its option, to either repair or replace the defective goods or return same to manufacturer for repair or replacement.
