Terms of Trade

The terms of trade set out below govern all of the supplies of goods and services from IT Smart Limited trading as IT Smart (herein referred to as “IT Smart”) to you (herein referred to as “Customer” or “The Customer”). They will replace any terms and conditions contained in any document used by you and purporting to have contractual effect, and your acceptance of any goods or services from IT Smart indicates your acceptance of these terms of trade.

These terms of trade are a “living” document and as such will be expected to change from time to time. It is The Customer’s responsibility to regularly familiarise themselves with these terms as not all, if any, changes will be formally notified.

1. Price & Order

1.1 Unless otherwise stated all price quoted are exclusive of Goods and Services Tax, freight, insurance or handling charges. The customer shall pay Goods and Services Tax, freight, insurance or handling charges in addition to the quoted price. 1.2 IT Smart reserves the right to revise its prices without notice at any time prior to accepting an order. The receipt of an order by IT Smart from a Customer does not constitute acceptance by IT Smart.
1.3 IT Smart reserves the right to refuse to accept any order or any part order for any reason whatsoever.
1.4 The prices quoted may be revised by IT Smart subsequent to accepting an order in the event of any occurrence affecting delivery caused by war, Government action, variation in Customs duties, increased shipping charges, increase in price of the goods or services supplied to IT Smart and any other matter beyond the control of IT Smart. In that event the Customer shall have the right to withdraw its order.
1.5 All backorders at the time of any price change will reflect the new price.
1.6 Where goods or services are supplied to the Customer in instalments each instalment will comprise a separate contract and shall be paid for as if it were a separate order.
1.7 Products or Services from External Suppliers or Contractors: in the event that IT Smart introduce or engage on the Customer’s behalf with an external supplier, contractor or other third party it remains the Customer’s responsibility to ensure they are familiar with that third party’s Terms and Conditions (if applicable).

2. Delivery and Risk

2.1 You do not have the right to possess goods until they are delivered to you, or collected by you or your agent.
2.2 All claims for shortage or damage during delivery must be made to the carrier within 7 days of the date of delivery. Where goods appear to be damaged or missing you must contact the carrier and IT Smart immediately.
2.3 IT Smart will make every effort to ensure delivery of goods, 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.
2.4 You are responsible for insurance and risk in the goods from the time they leave IT Smart’s premises.

3. Payments and Property

3.1 Unless IT Smart has agreed to extend credit to you, you must pay for the goods or services before supply, and you will not be considered to have paid until the payment has been fully cleared through the banking system into IT Smart’s bank account.
3.2 Where IT Smart has agreed in writing to extend credit to you, you must pay in full within 14 days following the dispatch of an invoice. If you have not paid in full by the due date, IT Smart may charge you interest compounding monthly on the unpaid overdue balance at the rate of 5% per month, and IT Smart may at its option suspend delivery of further goods or performance of further services until the account is paid.
3.3 Property and ownership in goods, whether in their original form or incorporated or attached to another product, will not pass to you but will remain with IT Smart until IT Smart receives payment in full of the purchase price of the goods and all other amounts that you owe to IT Smart for any reason.
3.4 The goods shall be stored separately and in a manner to enable them to be identified and cross-referenced to particular invoices.
3.5 Unless otherwise notified in writing, you are authorised to sell the goods in the ordinary course of your business, but you must keep the proceeds of any goods sold in separate account in trust for IT Smart.
3.6 All payments shall immediately become due to IT Smart if you become insolvent, commit any act of bankruptcy, or if a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking, or if you make or attempt to make an arrangement or composition with creditors.
3.7 The Customer shall pay in full for any goods or services supplied without deduction or off-set.
3.8 IT Smart may refuse to supply any further goods or services and/or grant further extensions of credit while any overdue amounts owing to IT Smart remain unpaid. 3.9 If IT Smart agrees to accept the return of goods (other than defective goods) it shall be entitled to withdraw any credit facilities at any time without notice.
3.10 IT Smart may charge a restocking fee of up to 10% of the invoiced price of the goods returned. This is levied at the Company’s absolute discretion.
3.11 Whenever the Customer is in default of payment or any account due to IT Smart, the Customer will pay all the costs of the Company (as between Solicitor and Client, Debt Collectors fee) of and incidental to any legal proceedings. For which the Company may take for the purpose of obtaining any monies to it or enforcing IT Smart’s rights, powers and remedies under these terms of trade.
3.12 The Customer grants IT Smart the right to enter upon the Customer’s premises where such goods are located or where the services were performed to take possession of the goods or to prevent the Customer from having the benefit of the services performed by IT Smart while any overdue amounts owing to IT Smart remain unpaid by the Customer. IT Smart shall not be liable in any manner whatsoever for any damage or any such loss that results from such repossession, prevention of use of services or entry onto the premises. The Customer hereby grants IT Smart an irrevocable license to enter the Customer’s premises at any time for the purpose of this clause.

4. Security for Payment

4.1 If at any time IT Smart considers that a Customer’s credit is unsatisfactory, IT Smart may require security for payment and suspend its performance of the contract until sufficient security is provided by the Customer. All costs or expenses incurred by IT Smart as a result of such suspension and recommencement shall be payable by the Customer on demand.
5. Goods Returned for Credit
5.1 IT Smart may at its discretion accept the return for credit of goods, other than books, printers, or licensed software, which are not defective provided that they are returned within 14 days of invoice date, freight and insurance prepaid in original packing in as new and saleable condition, with a copy of the original purchase invoice and a note of the return authorisation number.

6. Cancellation

6.1 Without prejudice to any other rights that IT Smart may have against the Customer, IT Smart may cancel this contract if the Customer fails to make full payment of any invoices by the due date for payment.
6.2 IT Smart may also cancel this contract without notice if the Customer takes any steps for its liquidation, request removal from the Registrar under the Companies Act 1993, or proposes any amalgamation under the Companies Act 1993 or any equivalent analogous procedures or commits an act of bankruptcy or is unable to pay its debts as they fall due.
6.3 The Customer may not cancel this contract except upon full payment to IT Smart of the value of goods and services provided to the Customer at the date of termination, together with any non-recoverable costs (including special, incidental and consequential damages and loss of profit attributable to the cancellation) and all expenses in respect of the goods or services for which IT Smart are committed to incur and pay.

7. Warranty

7.1 Goods are subject to manufacturers’ warranties only, unless the Customer is otherwise notified in writing by IT Smart and as such IT Smart will pass on the benefits of those warranties to the Customer.
7.2 Any faulty product should be returned to IT Smart immediately, whereupon it will be repaired or replaced at the Company’s discretion. The warranty is void if the goods have been tampered with, damaged by accident, improper use or incorrect installation. IT Smart shall not be liable for consequential or special damages under any circumstances.
7.3 Where goods are subject to a return to base warranty the Customer is responsible for returning the goods to IT Smart or the manufacturer (as provided bythe warranty) and may be responsible for additional costs (but not limited to) freight. 7.4 The Customer cannot claim warranty service if the Customer’s account is overdue. IT Smart reserves the right to withhold or refuse warranty service whilst the Customer’s account is in arrears. 

8. Consumer Guarantees Act 1993

8.1 In circumstances where IT Smart is deemed to be a supplier if the Customer acquires our goods or services for the purpose of business as defined in the Consumer Guarantees Act 1993, the provisions of the Act do not apply.
9. Disclaimer of Liability
9.1 To the maximum extent permitted by law IT Smart shall not be liable for or in respect of any loss or damage suffered by the Customer arising of or incidental to: 9.1.1 riot, civil commotion, lock-out, trade or union dispute, labour disturbance, acts of malicious persons, stoppage or restraint of labour from whatever cause.
9.1.2 mechanical accident, breakdown or failure of any nature of the Customers computer
system (including hardware and software)
9.1.3 any existing or latent defect in, or any damage to any hardware or software that is caused by or results from or contributed to by any other party other than IT Smart. 9.1.4 any other cause whatsoever outside the reasonable control of IT Smart. 

10. Limitation of Liability

10.1 Without prejudice, whilst IT Smart will provide all reasonable assistance to enable The Customer to recover from any system error arising out of or in connection with the performance of the Services, IT Smart will not in any way be liable for such system error unless the error is caused by our gross negligence or wilful conduct. For the purposes of this paragraph, “system error” means (i) system or network downtime, (ii) reduction of bandwidth, (iii) any loss or damage to your system or network and/or (iv) loss of access to any information.
10.2 IT Smart will not be liable for any special, incidental, exemplary, punitive, indirect or consequential damages including loss of data, loss of profits, revenue, business and anticipated savings unless such loss is attributable to the wanton neglect, omission, negligence, or other action by IT Smart authorised personnel or delegated technicians.
10.3 In addition to clauses 9 and 10 above it is understood and accepted by the Customer that should IT Smart (notwithstanding the provisions of these terms and conditions of trade) be found liable for any loss or damage sustained or suffered by the Customer whether such loss or damage arises from the breach of IT Smart of any contractual or statutory provisions, is due or arises from any negligence or act of omission on the part of IT Smart, its servants or agents in any respect, the liability of the Company hereunder and at common law shall be limited to sum not exceeding the aggregate amount paid by the Customer to IT Smart for providing the services only, or is the costs and expenses incurred in the rectification, reconciliation, reinstatement of the system to its fully functional state.

12. Personal Guarantee of Company Director or Trustee

12.1 If the Customer is a company, or Trust, the Director(s) or Trustee(s) jointly and severally personally guarantee and undertake as principle debtors to IT Smart the payment of any and all other monies now and hereafter owed by the Customer to the Company. Any personal guarantee made by any other party shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The Customer and the guarantors shall be jointly and severally liable under the terms and conditions of this contract.

13. Indemnity

13.1 The Customer shall indemnify IT Smart against all claims in respect of any loss or damage including consequential loss sustained by a third party howsoever caused after the receipt of goods or services by the Customer

14. Governing Law

14.1 This contract shall be governed by New Zealand law and the Customer and IT Smart submit to the exclusive jurisdiction of the New Zealand Courts.

15. Privacy

15.1 The Customer noting the requirements under the Privacy Act 1993 authorises and directs that IT Smart can seek and obtain from and supply any information concerning the credit or business standing of the Customer to any other person whether trader, merchant, firm, organisation, company or any agency or source whatever including any credit agency or association or the like and directs any such person to supply and receive and record such information to and from the Company.

16. Personal Property Securities Act 1999 (“the Act”)

16.1 The Customer grants a security interest (as that term is define in the Act) to IT Smart over all goods presently or in the future supplied to the Customer by IT Smart until the purchase price of each good and all amounts owing to IT Smart are paid in full.
16.2 On the request of IT Smart the Customer shall promptly execute any documents and do anything else required by the Company to ensure the security interest created under these conditions constitutes a perfected security interest (as that term is defined in the Act) over the goods supplied to the Customer by IT Smart, including:
16.2.1 executing and amendment to these conditions as reasonably required by IT Smart
16.2.2 executing any replacement or additional security document(s) and
16.2.3 providing any information to IT Smart to enable it to complete a Financing Statement or a Financing Change Statement
16.3 The Customer shall not agree to allow any person to file a Financing Statement over any of the goods supplied pursuant to these conditions without the prior written consent of IT Smart and the Customer shall notify IT Smart immediately if it becomes aware of any person taking any step to file a Financing Statement against any goods which are supplied pursuant to these conditions.
16.4 The Customer irrevocably appoint IT Smart to be your attorney to do anything which you agree to do under this agreement and anything which the attorney thinks desirable to protect IT Smart’s interest under this agreement and you ratify anything done by the attorney under this clause.

16.5 The Customer waives the right to receive a copy of the verification statement confirming registration of a Financing Statement or a Financing Change Statement to the security interest created by this agreement.
16.6 The Customer agrees sections 114(1)(a), 133 and 134 of the Act shall not apply to this agreement or the security under this agreement.
16.7 The Customer agrees that none of the Customers rights as a debtor under section 11, 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 shall apply to this agreement.

17. Intellectual Property

17.1 All Intellectual Property shall remain the property of IT Smart and any Supplier entitled thereto and neither IT Smart nor its Suppliers transfer any right, title or interest in the Intellectual Property to the Customer.
17.2 The Customer shall not use any trade marks which are the property of IT Smart 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 expressly authorised by IT Smart in writing.
17.3 The Customer agrees to only dispatch any goods supplied by IT Smart under the trademarks under which they are supplied, and under no circumstances shall the Customer apply any trade marks to any product which is not a genuine branded product supplied to the Customer by IT Smart.
17.4 The Customer will not cause or permit anything which may interfere with, damage or endanger the trade mark s or the intellectual property of IT Smart or its Suppliers, or assist or allow others to do so.
17.5 The Customer undertakes to advise IT Smart immediately when it becomes aware of any unauthorized use or attempted use by any person of the trademarks or other intellectual property rights of IT Smart or its Suppliers.
17.6 In the case of the Customer’s account with IT Smart being terminated the Customer shall immediately discontinue use of any of the trade marks which are the property of the Company or its Suppliers in any sign or advertising and thereafter shall not use those trademarks directly or indirectly in connection with its business.

18. Customer Information and Guarantee

18.1 The Customer warrants that the information supplied to IT Smart is true and correct and the Customer acknowledges that IT Smart will rely upon the correctness of the representations and information the Customer has provided. The Customer further undertakes to inform IT Smart of any changes in the information.

19. Disclosure

19.1 IT Smart may at times receive demonstration goods, gifts, commissions, reimbursements or the like from its supplier network. Any such activity will not impact the impartial advice that is provided to clients. Upon request we are happy to disclose any such relationship relevant to any goods or services you purchase from us.

20. Confidentiality

20.1 IT Smart and The Customer agree jointly not to disclose to any person any information relating to the Services (including the user ID number(s), password(s) and PIN), software or equipment which are/is acquired from or provided by IT Smart or our third party supplier. This restriction will not apply to any information which is or becomes publicly available otherwise than through a breach of your obligation.

21. Force Majeure

21.1 Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement to the extent that such delay or failure is due to fire, major power failure, strike, Acts of God and other force majeure events, including Earthquake(s).
21.2 If a delay or failure to perform obligations is caused or anticipated due to force majeure, the party unable to fulfil its obligations shall immediately give notice in writing to the other party of such fact and the reasons therefore and shall promptly take all reasonable steps to overcome the circumstances delaying or preventing its performance.
21.3 If a delay or failure to perform a party’s obligations due to force majeure exceeds ten (10) Working Days either party may immediately terminate the Agreement on providing notice to the other party.

22. Inducement of Personnel

2.1 Except as otherwise agreed to in writing, both parties agree to refrain from hiring, contracting or employing any employee of the other or its subsidiaries or parent The Company who performs services in connection with this Agreement until one (1) year from the conclusion of this Agreement.

23. Non Waiver

23.1 If IT Smart fails to enforce any terms or to exercise its rights under these terms of trade at any time, IT Smart has not waived those rights.

24. Severability

24.1 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.