Terms and Conditions of Sale
This document sets out the terms and conditions under which The Laptop Company ("we") sell to our customer ("you") computer equipment (referred to in these terms of sale as "computer equipment").
These terms and conditions set out your obligations in respect of the purchase of the computer equipment and we suggest that you read them carefully.
Application of these terms
1. These terms apply only if you have not signed any other contract with us to purchase computer equipment. If you have previously signed a contract with us to purchase computer equipment, then the terms and conditions of that contract will apply instead of these terms and conditions.
2. If you have not previously signed any other contracts with us to purchase computer equipment, then these terms and conditions are the only terms and conditions that apply with respect to the purchase of computer equipment by you from us. No other terms, conditions or representations about the computer equipment apply to the purchase of the computer equipment by you except for the terms, conditions and representations set out in our quotation in respect of the computer equipment.
3. If you have not previously signed any other contracts with us to purchase computer equipment, these terms and conditions shall apply to you as well your successors and assigns. References to you shall be considered references to your successors and assigns, as the case may be.
Sale and purchase of the computer equipment
4. We agree to sell, and you agree to buy, the computer equipment.
What you must pay
5. .You must pay to us the price for the computer equipment set out in our invoice to you ("the price of the computer equipment").
6. When given by us, firm quotations on specified items are not subject to any fluctuation until after the expiry of 30 days from the date of the quotation.
7. In addition to the price of the computer equipment, you must also pay to us:
a. Any taxes and duties which we must collect and pay for the computer equipment;
b. Any Goods and Services Tax which is not already included in the price of the computer equipment;
c. Storage and insurance costs if we hold the computer equipment for any period of time between the signing of the contract to which these terms and conditions relate and the delivery of the computer equipment to you ;
d. Any increase in the price of the computer equipment caused by a fluctuation in the exchange rate of the New Zealand dollar;
e. The cost of delivering the computer equipment to you by us, unless you make alternative arrangements to collect the computer equipment.
When you must pay
8. You must pay to us a deposit of 10% of the price of the computer equipment on accepting the quotation given by us to you for the computer equipment.
9. You must pay the remainder of the price of the computer equipment, and any additional payments required under clause 7 of these terms and conditions, to us by the date shown on our invoice.
10. We may hold the computer equipment until you have paid all the amounts due and owing under these terms and conditions.
11. If you do not pay any amount due to us under these terms and conditions when it is required to be paid:
a. We may charge interest on the amount owing. That interest shall be calculated by us at a rate equal to 30% per year until we are paid in full;
b. You will be liable to pay for any costs incurred by us in collecting payment of the amounts due and owing to us under this contract.
c. We may recover and/or sell any of the computer equipment already delivered to you (even if it has been integrated with other computer equipment or property). You agree that we or our agents may enter your premises to access the computer equipment for that purpose and that we will not be liable to you in any way for any loss or damage we might reasonably cause in exercising our rights given by this clause. You agree to indemnify us against any claims whatsoever from any third party in respect to our exercise of our rights given by this clause. If we recover the computer equipment and sell it for an amount that is more than the amount you owe us at the time, we will pay to you the amount in excess of the amount you owe us. If we recover the computer equipment from you and sell it for a price below the amount owed to us by you then we may claim the remaining amount from you as a debt due to us.
Delivery of the computer equipment
12. If you request, we will arrange delivery of the computer equipment to you.
13. We will try to ensure that the computer equipment is delivered to you as quickly as possible but cannot guarantee that delivery will take place on any particular date or within any particular period of time.
Purchaser's responsibility for the computer equipment
14. You will be regarded as having accepted the computer equipment either:
a) When you collect the computer equipment; or
b) If you ask us to deliver the computer equipment, when the computer equipment leaves our premises.
15. You will be responsible for any loss, damage or deterioration to the computer equipment that happens after you are regarded as having accepted the computer equipment under clause 14 of these terms and conditions. This includes any loss, damage or deterioration that occurs while the computer equipment is being delivered to you and sections 34(2) and 34(3) of the Sale of Goods Act 1908 do not apply.
16. From the time the computer equipment is accepted by you until the computer equipment becomes your property, you shall keep the computer equipment safe, ascertainable, and properly insured with our interest duly noted by your insurer.
When you become the owner of the computer equipment
17. The computer equipment remains our property until you have paid all amounts owing to us under these terms and conditions even if you integrate the computer equipment with other equipment or property.
18. If the computer equipment is delivered to, or collected by you, before you have paid all amounts owing to us under these terms and conditions, then you must hold the computer equipment on trust on our behalf and must not sell or otherwise dispose of it.
19. If you do sell or dispose of the computer equipment before you have paid all amounts owing to us under these terms and conditions, in breach of clause 18, then the amount you receive for the computer equipment will belong to us. You must keep that amount in trust for us, preferably in a separate account on our behalf and pay it to us when asked to do so.
Our Other Rights
20. Liquidated damages to the value of the total amount due to us under these terms and conditions accrue upon discovery by us of incorporation of the computer equipment with any goods supplied by a third party into any other asset.
21. We shall be entitled to reasonable security from you in respect of any amounts which become overdue to us under these terms and conditions and you grant to us and authorise us to register security for the full purchase price in respect of any amounts which become overdue to us under these terms and conditions for a period of more than 14 days.
22. If rights of possession of, recovery of, or payment for, the computer equipment, given to us pursuant to these terms and conditions as the case may be, are refused by you, your agents, any receiver or liquidator appointed, or any customer of yours, we shall, within 30 days after ascertaining that funds have not been lodged on separate trust for the Company, be entitled, as your true and lawful attorney, to create, execute and register our security as provided by these conditions.
23. For the purpose of clause 22, the execution of a security shall be deemed to take place on the date on which we received notice of a breach of these terms and condition by you to which we have not agreed in writing.
24. You will not be entitled to question the rights given to us by these terms and conditions and they shall rank in priority to similar rights of any secured creditor until the goods have been returned, or full payment of any amount owed under these terms and conditions, has been made to us.
25. No time or other indulgence by us will affect our strict rights arising from these terms and conditions.
Company's liability limited
26. Subject to clause 31 below, we will only be liable to you for loss, costs or damage you suffer as a direct result of our negligence or that of our employees.
27. Despite 26, neither we, nor our employees, agents or suppliers are at any time liable for:
a) Any failure to comply, or delay in complying, with these terms caused by events beyond our control.
b) Anything that relates to loss of profits, business, anticipated savings, revenue or use for any indirect or consequential loss at all incurred by you.
28. If for any reason we are required to pay you for anything under these terms and conditions, then, subject to clause 31 below, the most we are required to pay is (at our option):
a) The cost of repairing or replacing the computer equipment; or
b) The cost of repairing or replacing any computer software provided by us with the computer equipment; or
c) The cost of refunding any amounts you have paid to us under these terms and conditions.
29. Our employees, agents and suppliers have the benefit of any protection offered by these terms.
We do not give any Warranties
30. We do not give any warranties, guarantees or representations in respect of the computer equipment and any warranties, guarantees or representations implied by law are excluded, to the extent that it is lawful to do so. In particular, but without limiting this exclusion:
30.1 Where the computer equipment or any associated software is not of a kind ordinarily acquired for personal, household or domestic use or consumption, or where you acquire or holds yourself out as acquiring, the goods or services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 are excluded from these terms and conditions and will not apply; and
30.2 If you sell the computer equipment to another customer and either the computer equipment or any associated software is not of a kind ordinarily acquired for personal, household or domestic use or consumption, or your customer acquires, or holds itself out as acquiring, the goods or services for the purposes of a business, you shall sell the computer equipment to that customer on terms which exclude liability for any claims under the Consumer Guarantees Act 1993.
30.3 We shall not be liable under warranty if the computer equipment is misused. Misuse includes, but is not limited to:
a) The misuse of software, negligent installation or operation, failure to back up data, or the use of the computer equipment for which it was not intended; or
b) Inadequate packaging, cleaning or maintenance of the computer equipment; or
c) Tampering with, or unauthorised repairs or modifications of, the computer equipment, or
d) The addition to the computer equipment of hardware not supplied by us.
31. These terms and conditions do not exclude:
a) Any protection you has under the Consumer Guarantees Act 1993, except for that protection which is excluded under clause 30 above;
b) Any warranties, guarantees or representations given by the manufacturer of the computer equipment. However, if you choose to enforce any warranty, guarantee or representation made by the manufacturer, then you must do so against the manufacturer and not us.
Dispute resolution
32. Both parties agree to negotiate in good faith to resolve any dispute or difference between you and us.
33. If the parties are unable to resolve any dispute or difference within 90 days of the dispute or difference arising, then either party is free to pursue any legal or equitable remedies available.
34. Both parties agree that any legal or equitable remedy pursued against the other shall be conducted in New Zealand and according to New Zealand law. Variation and waiver
35. These terms and conditions shall not be varied except by written agreement of both parties.
36. If either party does not exercise a right, or is slow to exercise a right, under these terms and conditions, that will not prevent either party exercising the same right, or any rights given to it under these terms and conditions, in future.
37. Any single or partial exercise of a right under these terms and conditions shall not prevent either party from exercising the same right, or any rights given to it under these terms and conditions, in the future.
Separately binding terms
38. If for any reason one or more of these terms and conditions is or becomes unenforceable, all other terms shall remain binding.
Continuing terms
39. Any terms or conditions that have not been fully performed shall remain in full force and effect even after the computer equipment is delivered to you.
Governing law
40. This Agreement shall be governed by, and construes in accordance with, the laws of New Zealand.
These terms and conditions set out your obligations in respect of the purchase of the computer equipment and we suggest that you read them carefully.
Application of these terms
1. These terms apply only if you have not signed any other contract with us to purchase computer equipment. If you have previously signed a contract with us to purchase computer equipment, then the terms and conditions of that contract will apply instead of these terms and conditions.
2. If you have not previously signed any other contracts with us to purchase computer equipment, then these terms and conditions are the only terms and conditions that apply with respect to the purchase of computer equipment by you from us. No other terms, conditions or representations about the computer equipment apply to the purchase of the computer equipment by you except for the terms, conditions and representations set out in our quotation in respect of the computer equipment.
3. If you have not previously signed any other contracts with us to purchase computer equipment, these terms and conditions shall apply to you as well your successors and assigns. References to you shall be considered references to your successors and assigns, as the case may be.
Sale and purchase of the computer equipment
4. We agree to sell, and you agree to buy, the computer equipment.
What you must pay
5. .You must pay to us the price for the computer equipment set out in our invoice to you ("the price of the computer equipment").
6. When given by us, firm quotations on specified items are not subject to any fluctuation until after the expiry of 30 days from the date of the quotation.
7. In addition to the price of the computer equipment, you must also pay to us:
a. Any taxes and duties which we must collect and pay for the computer equipment;
b. Any Goods and Services Tax which is not already included in the price of the computer equipment;
c. Storage and insurance costs if we hold the computer equipment for any period of time between the signing of the contract to which these terms and conditions relate and the delivery of the computer equipment to you ;
d. Any increase in the price of the computer equipment caused by a fluctuation in the exchange rate of the New Zealand dollar;
e. The cost of delivering the computer equipment to you by us, unless you make alternative arrangements to collect the computer equipment.
When you must pay
8. You must pay to us a deposit of 10% of the price of the computer equipment on accepting the quotation given by us to you for the computer equipment.
9. You must pay the remainder of the price of the computer equipment, and any additional payments required under clause 7 of these terms and conditions, to us by the date shown on our invoice.
10. We may hold the computer equipment until you have paid all the amounts due and owing under these terms and conditions.
11. If you do not pay any amount due to us under these terms and conditions when it is required to be paid:
a. We may charge interest on the amount owing. That interest shall be calculated by us at a rate equal to 30% per year until we are paid in full;
b. You will be liable to pay for any costs incurred by us in collecting payment of the amounts due and owing to us under this contract.
c. We may recover and/or sell any of the computer equipment already delivered to you (even if it has been integrated with other computer equipment or property). You agree that we or our agents may enter your premises to access the computer equipment for that purpose and that we will not be liable to you in any way for any loss or damage we might reasonably cause in exercising our rights given by this clause. You agree to indemnify us against any claims whatsoever from any third party in respect to our exercise of our rights given by this clause. If we recover the computer equipment and sell it for an amount that is more than the amount you owe us at the time, we will pay to you the amount in excess of the amount you owe us. If we recover the computer equipment from you and sell it for a price below the amount owed to us by you then we may claim the remaining amount from you as a debt due to us.
Delivery of the computer equipment
12. If you request, we will arrange delivery of the computer equipment to you.
13. We will try to ensure that the computer equipment is delivered to you as quickly as possible but cannot guarantee that delivery will take place on any particular date or within any particular period of time.
Purchaser's responsibility for the computer equipment
14. You will be regarded as having accepted the computer equipment either:
a) When you collect the computer equipment; or
b) If you ask us to deliver the computer equipment, when the computer equipment leaves our premises.
15. You will be responsible for any loss, damage or deterioration to the computer equipment that happens after you are regarded as having accepted the computer equipment under clause 14 of these terms and conditions. This includes any loss, damage or deterioration that occurs while the computer equipment is being delivered to you and sections 34(2) and 34(3) of the Sale of Goods Act 1908 do not apply.
16. From the time the computer equipment is accepted by you until the computer equipment becomes your property, you shall keep the computer equipment safe, ascertainable, and properly insured with our interest duly noted by your insurer.
When you become the owner of the computer equipment
17. The computer equipment remains our property until you have paid all amounts owing to us under these terms and conditions even if you integrate the computer equipment with other equipment or property.
18. If the computer equipment is delivered to, or collected by you, before you have paid all amounts owing to us under these terms and conditions, then you must hold the computer equipment on trust on our behalf and must not sell or otherwise dispose of it.
19. If you do sell or dispose of the computer equipment before you have paid all amounts owing to us under these terms and conditions, in breach of clause 18, then the amount you receive for the computer equipment will belong to us. You must keep that amount in trust for us, preferably in a separate account on our behalf and pay it to us when asked to do so.
Our Other Rights
20. Liquidated damages to the value of the total amount due to us under these terms and conditions accrue upon discovery by us of incorporation of the computer equipment with any goods supplied by a third party into any other asset.
21. We shall be entitled to reasonable security from you in respect of any amounts which become overdue to us under these terms and conditions and you grant to us and authorise us to register security for the full purchase price in respect of any amounts which become overdue to us under these terms and conditions for a period of more than 14 days.
22. If rights of possession of, recovery of, or payment for, the computer equipment, given to us pursuant to these terms and conditions as the case may be, are refused by you, your agents, any receiver or liquidator appointed, or any customer of yours, we shall, within 30 days after ascertaining that funds have not been lodged on separate trust for the Company, be entitled, as your true and lawful attorney, to create, execute and register our security as provided by these conditions.
23. For the purpose of clause 22, the execution of a security shall be deemed to take place on the date on which we received notice of a breach of these terms and condition by you to which we have not agreed in writing.
24. You will not be entitled to question the rights given to us by these terms and conditions and they shall rank in priority to similar rights of any secured creditor until the goods have been returned, or full payment of any amount owed under these terms and conditions, has been made to us.
25. No time or other indulgence by us will affect our strict rights arising from these terms and conditions.
Company's liability limited
26. Subject to clause 31 below, we will only be liable to you for loss, costs or damage you suffer as a direct result of our negligence or that of our employees.
27. Despite 26, neither we, nor our employees, agents or suppliers are at any time liable for:
a) Any failure to comply, or delay in complying, with these terms caused by events beyond our control.
b) Anything that relates to loss of profits, business, anticipated savings, revenue or use for any indirect or consequential loss at all incurred by you.
28. If for any reason we are required to pay you for anything under these terms and conditions, then, subject to clause 31 below, the most we are required to pay is (at our option):
a) The cost of repairing or replacing the computer equipment; or
b) The cost of repairing or replacing any computer software provided by us with the computer equipment; or
c) The cost of refunding any amounts you have paid to us under these terms and conditions.
29. Our employees, agents and suppliers have the benefit of any protection offered by these terms.
We do not give any Warranties
30. We do not give any warranties, guarantees or representations in respect of the computer equipment and any warranties, guarantees or representations implied by law are excluded, to the extent that it is lawful to do so. In particular, but without limiting this exclusion:
30.1 Where the computer equipment or any associated software is not of a kind ordinarily acquired for personal, household or domestic use or consumption, or where you acquire or holds yourself out as acquiring, the goods or services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 are excluded from these terms and conditions and will not apply; and
30.2 If you sell the computer equipment to another customer and either the computer equipment or any associated software is not of a kind ordinarily acquired for personal, household or domestic use or consumption, or your customer acquires, or holds itself out as acquiring, the goods or services for the purposes of a business, you shall sell the computer equipment to that customer on terms which exclude liability for any claims under the Consumer Guarantees Act 1993.
30.3 We shall not be liable under warranty if the computer equipment is misused. Misuse includes, but is not limited to:
a) The misuse of software, negligent installation or operation, failure to back up data, or the use of the computer equipment for which it was not intended; or
b) Inadequate packaging, cleaning or maintenance of the computer equipment; or
c) Tampering with, or unauthorised repairs or modifications of, the computer equipment, or
d) The addition to the computer equipment of hardware not supplied by us.
31. These terms and conditions do not exclude:
a) Any protection you has under the Consumer Guarantees Act 1993, except for that protection which is excluded under clause 30 above;
b) Any warranties, guarantees or representations given by the manufacturer of the computer equipment. However, if you choose to enforce any warranty, guarantee or representation made by the manufacturer, then you must do so against the manufacturer and not us.
Dispute resolution
32. Both parties agree to negotiate in good faith to resolve any dispute or difference between you and us.
33. If the parties are unable to resolve any dispute or difference within 90 days of the dispute or difference arising, then either party is free to pursue any legal or equitable remedies available.
34. Both parties agree that any legal or equitable remedy pursued against the other shall be conducted in New Zealand and according to New Zealand law. Variation and waiver
35. These terms and conditions shall not be varied except by written agreement of both parties.
36. If either party does not exercise a right, or is slow to exercise a right, under these terms and conditions, that will not prevent either party exercising the same right, or any rights given to it under these terms and conditions, in future.
37. Any single or partial exercise of a right under these terms and conditions shall not prevent either party from exercising the same right, or any rights given to it under these terms and conditions, in the future.
Separately binding terms
38. If for any reason one or more of these terms and conditions is or becomes unenforceable, all other terms shall remain binding.
Continuing terms
39. Any terms or conditions that have not been fully performed shall remain in full force and effect even after the computer equipment is delivered to you.
Governing law
40. This Agreement shall be governed by, and construes in accordance with, the laws of New Zealand.