TERMS AND CONDITIONS OF TRADE FOR DIGIHOME LIMITED
1.1 In these terms and conditions the “Company” means DIGIHOME LIMITED.
1.2 Any hardware or installation services (together the “Product” or “any Product”) supplied by the Company to the Customer will be charged supplied on these terms and conditions. If the Customer orders Product, the Customer will be deemed to have accepted these terms and conditions. The only circumstance where any variation to these terms and conditions will apply is where the Company has expressly agreed in writing to that variation.
1.3 Where requested, estimates will be provided. Estimates may be revised as the specifications of a project evolve or when there are changes to a project’s initially defined content and scope.
2.1 Hardware will be invoiced at the price set by the Company plus GST on the date the order is made and installation services will be invoiced unless otherwise expressly agreed in writing by the Company.
2.2 The Customer acknowledges that the Company may alter prices at its discretion but will provide 30 days notice of any price changes taking effect. The Customer therefore acknowledges that the purchase price of Product may be different from the price quoted or the price current when Product was ordered.
2.3 If a project is terminated before completion, the Company will be compensated for all Product up to the date of termination.
2.4 Changes to the brief that require extra work to that specified in the original cost estimates or additional work required as a consequence of unforeseen circumstances may result in additional charges. Where possible, these items will be negotiated and agreed before further work is put in hand, otherwise they will be charged on the basis of our normal rates.
3.1 The invoiced price of any hardware comprised in the Product is to be paid in full on the date of invoice and prior to installation. All other costs, including the costs of installation, shall be paid within seven days following the date of invoice. However, the Company reserves the right to alter the payment terms including the requirement for payment for all Product upfront before the Product is delivered. The terms will be stated on the front of the invoice.
3.2 The Customer may not deduct or withhold any amount (whether by way of set-off counterclaim or otherwise) from any money owing to the Company. Receipt by the Company of any cheque or other bill of exchange intended as payment for Product shall not constitute payment until same has been honoured and cleared.
3.3 If full payment for any Product is not made to the Company by the due date for that payment, then the Customer shall be in default and the Customer shall at the Company’s discretion (and without affecting any other right the Company may have), pay default interest on any amount outstanding to the Company in accordance with the following:
(a) the default interest rate shall be 2.5 per cent per month; and
(b) default interest shall accrue on a daily basis from the date when payment is due until the date when payment is actually made; and
(c) the Customer shall be liable to pay all expenses and costs (including legal costs as between solicitor and client) in relation to the Company obtaining or attempting to obtain a remedy for the failure to pay.
3.4 All payments pursuant to 3.3 ((a)-(c) inclusive) shall be upon demand. The charging of default interest shall in no way imply the granting or an extension of credit by the Company to the Customer.
3.5 The Company reserves the right to discontinue any Product in hand for the client in the event of nonpayment of accounts at the correct time.
3.6 The Customer acknowledges that until payment is made in full for the Product (both hardware and installation costs), the Company shall be entitled to lock the hardware and retain any access to the same.
4.1 All risk in the Product supplied by the Company shall pass to the Customer on delivery.
5. SECURITY FOR PAYMENT
5.1 In consideration of the Company providing, or agreeing to provide Product to the Customer or to others at the request of the Customer, the Customer by accepting delivery of the Product that includes goods grants to the Company under the Personal Property Securities Act 1999:
(a) a Purchase Money Security Interest ("PMSI") in the goods; and
(b) agrees that any of the goods or proceeds of the goods coming into existence after the date of delivery will come into existence subject to the PMSI granted herein without the need for any further action by any party; and
(c) acknowledges that it has received valuable consideration from the Company and agrees that it is sufficient; and
(d) agrees that the PMSI has attached to the goods and that the attachment of the PMSI has in no way been deferred or postponed from the date recorded herein.
5.2 The Company will retain title until such time as the Customer has paid all amounts owed to the Company in respect of the goods.
5.3 The goods will be stored at the Customer's premises and the Customer will not relinquish possession or remove the goods from these premises except in the ordinary course of its business.
5.4 The Customer will keep the goods insured and in good repair and free of any liens or encumbrances. For these purposes, the Customer agrees to make the goods available at any time for the inspection of the Company or its agent(s).
5.5 If the Customer fails to make payment or is in default, as that term is defined in the Personal Property Securities Act 1999 (PPSA), then the Company or its agents may enter the Customer's address and remove the goods without notice or judicial process and the Customer waives any right that may arise as a result of this removal. Any shortfall on sale of the goods will be paid by the Customer and/or Covenantor to the Company.
6.1 The Company warrant the Product in respect of defects for a period of twelve months from the date of invoice; fair wear and tear and damage beyond the Company’s control excepted but such warranty shall not apply:
(a) to defects which would be apparent on delivery unless a written claim is received by the Company within 7 days;
(b) to Product which has been repaired by any person not authorised by the Company to do such repairs;
(c) to any Product which has been incorrectly maintained, handled or stored;
(d) to any Product which has been modified in any way;
(e) if the recommendations as to use, installation or maintenance of the Product as contained in current product data produced by the Company/Manufacturer have not been adhered to;
(f) to any Product which has been sold by the Company as seconds, downgrades or otherwise outside the standard specification for those Products.
6.2 Except for the warranty in Clause 6.1, all warranties, descriptions, representations or conditions whether implied by the Sale of Goods Act 1908 or otherwise is expressly excluded to the fullest extent permitted by law.
6.3 Under section 41(2) and or 43A Consumer Guarantees Act 1991, as appropriate, the Company and the Customer contract out of that Act.
6.4 In any event, the total liability of the Company whether in tort (including negligence), contract or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of any goods or any other breach of the Company’s obligations shall in any case be limited at the Company’s option, except where statute expressly requires otherwise, to either the repair or replacement of the goods complained of, or the refund of the purchase price (provided that if the Company is no longer manufacturing the identical product at the time of the claim, it may replace the product with the closest equivalent then being manufactured).
6.5 While the Company will make every effort to ensure the accuracy of any advice, recommendation, information, assistance or service provided by the Company in relation to the Product that is goods manufactured or supplied by the Company or their use or application, the Company does not accept any liability or responsibility in respect thereof.
6.6 The Customer will familiarise itself with the current literature produced by the Company.
6.7 The Company will have no liability either in contract or in tort for any loss suffered by the Customer or any third party claiming through the Customer for which the Company has not accepted in writing for such loss.
6.8 The Company makes no representations or warranties in respect of the Product supplied by it to the Customer unless such representation or warranty is made by the Company in writing to the Customer.
7. OTHER RIGHTS OF COMPANY
7.1 In the event that:
(a) any amounts payable by the Customer to the Company is overdue, or the Customer fails to meet any other obligation to the Company (whether in relation to the sale of goods or otherwise), or in the Company’s opinion the Customer is likely to be unable to meet its payment or other obligation to the Company; or,
(b) the Customer becomes insolvent, has a receiver appointed in respect of all or some of its assets, makes or is likely to make an arrangement with its creditors or has a liquidator (provisional or otherwise) appointed or is placed under statutory or official management; or,
(c) the ownership or effective control of the Customer is transferred or the nature of the Customer’s business is materially altered; the Company shall be entitled to cancel all or any part of any contract or contracts with the Customer which remains unperformed, in addition to and without prejudice to its other remedies; and
7.2 All amounts outstanding under any contract with the Company shall whether or not due for payment, immediately become due and payable; and
7.3 The Company shall be entitled to reclaim any goods in the Customer’s possession or control and to dispose of them for its own benefit and for that purpose the Company shall be entitled, without notice to enter directly or by its agents on any premises where it believes goods which it has supplied may be stored, without in any way being liable to any person.
8. PRIVACY ACT 1993
8.1 The Customer and any guarantor acknowledge that the Company may:
(a) collect from and disclose to the Customer, any Guarantor, or any appropriate third party any personal information concerning the Customer or a Guarantor as the Company may consider appropriately required;
(i) for the purpose of processing the Customer’s order; or,
(ii) for any other purpose in trade with the Customer or any Guarantor under the circumstances at the time of that collection or disclosure.
(b) use and retain any personal information which related to the Customer or any Guarantor as may be required by the Company in the ordinary course of its business.
9.1 If any clause or part of a clause of these terms and conditions is held to be invalid or unenforceable for whatever reason to the extent not inconsistent with the aforementioned invalid clause, the remaining provisions shall remain in full force and effect.
10. FORCE MAJEURE AND DELAY
10.1 The Company shall not be liable for any delay in performing its obligations under this agreement to the Customer caused in whole or in part by force majeure which shall include (but not limited to) an act of God, natural disasters, strikes, lockouts, fire, war suit, civil commotion, inability to obtain products or supplies including the imposition of any export or import bans or any other cause beyond the reasonable control of the Company.
10.2 Any time or date given by the Company for delivery or uplifting of Product is intended only as an estimate and the Company shall not be liable for the consequences of delay however arising and the Customer acknowledges that the Company will not accept any liability for any claims or losses arising from its failure to meet the delivery date (if any).
11.1 If at any time the Company does not enforce any of these terms and conditions or grants the Customer time or other indulgence, the Company shall not be construed as having waived that term or condition or its rights to later enforce that or any other term or condition.