Terms of Trade
The terms of trade set out below govern all of the supplies of Products and Services from ATC Consulting Limited (“ATC Consulting Ltd”, “We”,”Us”, to the customer (“You”). They will replace all earlier ATC Consulting Ltd terms of trade and any conditions contained in any document used by you and purporting to have contractual effect. Your payment of any Invoice from ATC Consulting Ltd indicates your acceptance of these terms of trade.
- 1.1 In these conditions, “Products and Services” includes all relevant advice, documentation, manuals, printed and written matter; and goods or services of any kind which are supplied by ATC Consulting Ltd to you; “Website” means any internet website owned and operated by ATC Consulting Ltd.
2. Price and Orders
- 2.1 Prices may be altered without notice.
- 2.2 Prices unless otherwise stated, do not include Goods and Services Tax (GST), other taxes, import duties or other levies or tariffs, freight or insurance charges, which, if applicable, will be an extra charge.
- 2.3 ATC Consulting Ltd reserves the right to refuse to accept any order or any part of an order, and to deliver goods by installments, in which case each installment will comprise a separate contract and shall be paid for as if it were a separate order.
3. Risk and Delivery
- 3.1 You agree to pay any and all delivery costs.
- 3.2 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.
- 4.1 Unless we have agreed to extend credit to you, you must pay in cash within 7 days of supply.
- 4.2 Where we have agreed to extend credit to you, you must pay in full within 7 days of supply, or (only if we have agreed in writing) by the 20th of the month following the dispatch of an invoice. Your payment is made only when funds have fully cleared through the banking system into our bank account.
- 4.3 We have sole discretion to determine the amount of credit we will extend to you at any time.
- 4.4 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.
- 4.5 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 solicitorclient basis) and suspend delivery of further Products or performance of further services until the account is paid.
- 4.6 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, 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 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 Where ATC Consulting Ltd reasonably believes you are or will be in breach of any part of clauses 4, 5 or 6 of these terms of trade, ATC Consulting Ltd or its agent may without notice enter any premises under your control to remove any Products which are the property of ATC Consulting Ltd, whether or not those Products are installed in or attached to any other goods, using such force as is necessary, and without prejudice to any other of ATC Consulting Ltd’s rights. You indemnify ATC Consulting Ltd against all costs and claims in respect of its exercise of rights under this clause 5.
6. Security Interests
- 6.1 You agree that you will do all acts necessary and provide us on request all information we require to register a financing statement over the Products or their proceeds, 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.
- 6.2 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.
- 6.3 You agree that we may require you to pay all reasonable costs, including legal costs on a solicitorclient basis, associated with the discharge or amendment of any financing statement registered by us, whether or not the change was initiated by you.
- 6.4 If we repossess goods under this agreement, we may retain those goods or dispose of them without notice or statement of account to you or any other person, and, after deducting reasonable costs of sale, we may credit any surplus by way of setoff against any sums owing to us. We will not be obliged to resupply any repossessed inventory.
- 6.5 You authorise us to search the Personal Property Securities Register at any time for any information about your company, your parent or associated companies.
- 7.1 You acknowledge and agree that we shall only accept returns in accordance with our returns policy as notified to you from time to time, and that you may receive a credit for goods returned only if we have consented in writing.
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. Limitation of Liability
- 10.1 The provisions of the Consumer Guarantees Act shall not apply to any supply of Products and Services to you, and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or implied by common law will not apply and are excluded from these terms of trade.
- 10.2 ATC Consulting Ltd’s maximum liability to you shall be limited to the value of any faulty Products or services supplied, and ATC Consulting Ltd 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 ATC Consulting Ltd or to any manufacturer or licensor), consequential loss, loss of profits and 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 specifications and design, and faulty materials, components, manufacture, compilation, or assembly of the Products.
- 10.3 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.
11. Your Further Obligations
- 11.1 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.
12. Intellectual Property and Confidentiality
- 12.1 All intellectual property shall remain the property of ATC Consulting Ltd or any Supplier entitled to it, and neither ATC Consulting Ltd nor its Suppliers transfer any right, title or interest in the intellectual property to you, except where agreed in writing.
- 12.2 You must not use any trademarks, which are the property of ATC Consulting Ltd or its Suppliers, or any similar words or marks, or any combination of words, which includes any of those, trademarks or any similar words or marks, except to the extent authorised by ATC Consulting Ltd in writing.
- 12.3 You must not cause or permit anything, which may interfere with, damage or endanger the trademarks or other intellectual property rights of ATC Consulting Ltd or its Suppliers, or assist or allow others to do so.
- 12.4 You must advise ATC Consulting Ltd 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 ATC Consulting Ltd or its Suppliers.
- 12.5 If your account with ATC Consulting Ltd is terminated, you must immediately discontinue use of any of the trademarks, which are the property of ATC Consulting Ltd in any sign, or advertising and thereafter you shall not use those trademarks directly or indirectly in connection with your business.
- 12.6 You agree to ensure that all Confidential Information given by ATC Consulting Ltd to you is made available to your employees only on the basis that those employees at all times maintain strict confidentiality.
- 12.7 ATC Consulting Ltd reserves the right to display the ATC Consulting Ltd logo or associated branding logos within finished Products.
- 12.8 Where any designs or drawings have been supplied by You for manufacture by or to the order of ATC Consulting Ltd, then You warrant that the use of those designs or drawings shall not infringe the rights of any third party. You warrant that any designs or instructions supplied to ATC Consulting Ltd will not cause ATC Consulting Ltd to infringe any patent, registered design or trademark.
- 13.1 Any complaint shall be made in writing within 21 days of receipt of Products or Services in order to remedy faults or complaints. Any disputes pertaining to invoices received after 21 days will be null and void.
- 13.2 In no circumstances whatever shall ATC Consulting Ltd be liable for consequential losses whether suffered by the You and/or any third party.
14. Unanticipated Events
- 14.1 ATC Consulting shall be entitled to cancel or suspend delivery of Products and Services in the event of any delay or non-performance due directly or indirectly to wars, strikes, lockouts, delays or defaults of manufacturers or suppliers, act of God, or any other cause (whether similar or dissimilar) beyond the reasonable control of ATC Consulting Ltd. You shall have no claim whatsoever against ATC Consulting Ltd in consequence of any such cancellation or suspension.
- 15.1 No guarantee shall be given or implied that the goods or services supplied to Your instructions or designed by ATC Consulting Ltd to those instructions are suitable for specific market requirements unless those are documented and/or from part of the original quotation.
- 16.1 ATC Consulting Ltd only supports technologies for Products and Services that were current at the time of development. We accept no responsibility if technology changes and a product or service is no longer accessible.
17. Illegal or Libellous Matter
- 17.1 ATC Consulting Ltd shall be indemnified by You in respect to any claims, costs end/or expenses arising from any matter, which is illegal, libellous in matter or in breach of the Fair Trading Act 1986 or any other statute or any infringement of copyright, patent or design.
18. Suspended Work on Client’s Instructions
- 18.1 If you suspend any work it will entitle ATC Consulting Ltd to payment in full for all Products and/or Services in progress at the time of suspension and for any work already completed that has monies outstanding.
- 19.1 ATC Consulting Ltd reserves the right to change these terms of trade from time to time.
- 19.2 If ATC Consulting Ltd fails to enforce any terms or to exercise its rights under these terms of trade at any time, ATC Consulting Ltd has not waived those rights.
- 19.3 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.
- 19.4 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.