STANDARD TERMS AND CONDITIONS OF SALE
The sale of all Goods by Dicker Data NZ Limited (Dicker Data) are subject to these standard terms and conditions of sale (Terms of Sale). By purchasing Goods from, or establishing an account with, Dicker Data you agree to be bound by these Terms of Sale.
In these Terms of Sale, unless the context indicates otherwise:
"Customer" means the person or organisation who Orders Goods from Dicker Data including for resale to End Users.
"End User" means the person or organisation who subscribes for on-line services through a Subscription.
"Goods" means all hardware, software, Subscription, peripherals, audiovisual equipment, telecommunications equipment, parts and any other related products supplied or financed by Dicker Data to the Customer from time to time in accordance with these Terms of Sale including, but not limited to, goods further identified in any invoice issued by Dicker Data to the Customer (which invoices are deemed to be incorporated into and form part of these Terms of Trade).
"Order" means an order submitted by the Customer by using the online order process on the Website or by email.
“Subscription” means the provision of online services, which may include software technology, whether directly by a Supplier or through Dicker Data.
“Supplier” means the ultimate provide of Subscription services.
"Website" means the Dicker Data website.
2. Orders and Subscriptions
2.1 If the Customer Orders Goods:
(a) all details (including, without limitation, price and availability of Goods) relating to the Order are subject to confirmation by Dicker Data;
(b) Dicker Data will confirm the Order by email to the Customer's email address as soon as reasonably possible following receipt of the Order; and
(c) Dicker Data is under no obligation to accept any Order and may decline any Order in its absolute discretion.
2.2 Dicker Data will not be liable for any damage, loss or expense, or indirect losses or consequential damages of any kind, suffered or incurred by the Customer or an End User in connection with the Customer's reliance on any Order that has not been confirmed.
2.3 The Customer shall ensure that all End Users read and confirm acceptance of both Dicker Data’s terms and conditions of use (Terms and Conditions of Use) and the Supplier’s customer agreement (Supplier Customer Agreement prior to accessing any Subscription service. Acceptance of Dicker Data’s Terms and Conditions of Use and the Supplier Customer Agreement can be effected through Dicker Data’s and the Supplier’s websites respectively. Without prejudice to its other rights under these Terms of Sale, Dicker Data reserves the right to suspend or cancel any Subscription without notice where the Terms and Conditions of Use and/or Supplier Customer Agreement have not been adequately accepted.
3. Price and Payment
3.1 The price of Goods will be the price set out in the confirmed Order, plus goods and services tax (GST) (if any).
3.2 The price of the Goods does not include delivery costs. All costs of, and associated with, delivery will, unless Dicker Data agrees otherwise in writing, be the responsibility of the Customer.
3.3 Unless otherwise agreed in writing, payment for Goods will be made without set-off or deduction by the 20th day of the month following date of invoice (Due Date).
3.4 Subscriptions will be invoiced monthly at the rate specified in the Order until the Subscription is terminated in accordance with Dicker Data’s Terms and Conditions of Use. Subscriptions may be amended by way of further Orders subject to Dicker Data’s Terms and Conditions of Use
3.5 The Customer acknowledges that, if any invoice is not paid on the Due Date, the entire balance then outstanding will immediately become due and payable without any further notice. The Customer agrees that:
(a) a service charge of 0.05% per day on overdue balances may be charged to the Customer’s account at the discretion of Dicker Data;
(b) the service charge constitutes a reasonable and genuine pre-estimate of the anticipated or actual loss or damage which would be incurred by Dicker Data as a result of the Customer's failure to pay;
(c) the service charge payable is reasonable and not a penalty; and
(d) if an unpaid invoice relates to a Subscription, the End User’s access to the online services may be suspended without notice until the Customer has made payment in full.
3.6 If Dicker Data instructs its solicitors or any other person or agency to collect an overdue amount or enforce any other obligation arising under these Terms of Sale, all costs, charges and legal expenses (on a solicitor and client basis) incurred by Dicker Data will be borne by the Customer and all payments made will firstly be allocated towards such costs and charges, then to interest and finally to the principal amount due.
3.7 Dicker Data may in its discretion allocate any payment received from the Customer towards any invoice that Dicker Data determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer under these Terms of Sale Dicker Data may reallocate any payments previously received and allocated. In the absence of any payment allocation by Dicker Data payments will be deemed to be allocated in such manner as preserves the maximum value of Dicker Data’s purchase money security interests in Goods.
3.8 If Dicker Data sets a credit limit for a Customer, that limit may not be exceeded without the prior written consent of Dicker Data.
3.9 Credit card payments are not accepted for payment of accounts, unless negotiated with Dicker Data's credit manager.
3.10 Any person accepting these Terms of Sale on behalf of the Customer agrees that they are jointly and severally liable to Dicker Data, as surety and co-principal debtor with the Customer, for payment of any amount which is now, or in the future becomes, due or owing by the Customer to Dicker Data.
4. Title, Delivery, Risk, Insurance
4.1 Ownership of the Goods will pass to the Customer once payment is made in full other than in the case of Subscriptions in which case ownership does not pass.
4.2 Without limiting clause 4.1, the Customer grants Dicker Data a security interest in all Goods from time to time purchased by the Customer from Dicker Data including all Goods sold and returned.
4.3 The proceeds of the sale of the Goods must, if Dicker Data requires, be paid into a separate account and held in trust for Dicker Data. The Customer must then make payment to Dicker Data from the account of all amounts which may be owing by the Customer to Dicker Data from time to time.
4.4 Until such time as the Goods have been paid for in full, the Customer must store the Goods in such a manner as to show clearly that they are the property of Dicker Data.
4.5 Dicker Data reserves the right, entirely at its discretion, to withhold delivery of all Goods ordered by the Customer if past invoices remain unpaid.
4.6 Despite anything to the contrary in these Terms of Sale, the risk of loss of, or damage to, or any deterioration in Goods passes to the Customer on delivery. Delivery of Goods is when the Customer takes possession of the Goods, or when the Goods are passed to the Customer's or Dicker Data's agent or carrier (whichever occurs first), unless agreed otherwise by Dicker Data in writing.
4.7 The Customer must insure the Goods from the time of delivery and, pending payment in full, insure the Goods for full replacement value in the name of Dicker Data.
5.1 All returns by the Customer will be dealt with in accordance with Dicker Data's returns policy (Returns Policy). The Returns Policy is available at www.dickerdata.co.nz.
6. Credit checks and reporting
6.1 The Customer agrees that Dicker Data may obtain information and make such enquiries about the Customer as Dicker Data considers warranted from any source including credit reference agencies for the purpose of assessing the credit worthiness of the Customer.
6.2 Dicker Data may also disclose information about the Customer to credit reference agencies for the purpose of obtaining a credit report on the Customer. Those credit reference agencies may retain that information and provide it to their customers who use their credit reporting services.
6.3 If the Customer defaults in any obligations to Dicker Data then information about the Customer may be disclosed to credit reference or debt recovery agencies and retained by them. Those agencies may provide that information to their customers who use their credit reporting services.
7.1 Dicker Data may, without prejudice to any other rights and remedies it may have at law or in equity, terminate any or every agreement or Order between itself and the Customer or suspend any
further deliveries or Subscriptions under any or every such agreement or Order if any of the following events (Default Events) occur:
(a) non-payment of any sum owing by the Customer to Dicker Data by the Due Date;
(b) the Customer intimating that it will not pay any sum by the Due Date;
(c) occurrence of any event which would entitle a creditor to petition for liquidation of the Customer;
(d) the Customer going into liquidation;
(e) appointment of a receiver and/or statutory manager of the Customer or any material part of its assets;
(f) the passing of a resolution for voluntary liquidation, or for the appointment of an administrator, in respect of the Customer;
(g) if the Customer becomes unable to pay its debts as they fall due or, is presumed under section 287 of the Companies Act 1993 to be unable to pay its debts;
(h) the seizure of Goods by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods;
(i) any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to Dicker Data remains unpaid;
(j) the Customer (in the case of an individual) dying or being adjudicated bankrupt; or
(k) a court judgment is entered against the Customer and remains unsatisfied for 7 days;
(l) any material adverse change occurs in the financial position of the Customer.
7.2. The Customer gives irrevocable authority to Dicker Data to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after a Default Event has occurred (or beforehand if Dicker Data believes a Default Event is likely to occur) and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated, and to suspend any Subscription.
7.3 Dicker Data may either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and credit the Customer’s account with the invoiced value of those Goods less such sum as Dicker Data reasonably determines on account of wear and tear, depreciation, obsolescence, payments made or due to be made by Dicker Data to third parties for Subscriptions, loss of profits and/or costs.
8.1 The Customer acknowledges that these Terms of Sale give rise to a security interest in all present and after acquired Goods supplied by Dicker Data to the Customer to secure the Customer's performance of its obligations under these Terms of Sale.
8.2 The Customer undertakes to:
(a) promptly do all things, execute all documents and provide any information which Dicker Data may reasonably require to enable it to perfect and maintain the perfection of its security interest (including by registration of a financing statement);
(b) give Dicker Data not less than 7 days prior written notice of any proposed change in its name or any other change of its details; and
(c) immediately on request by Dicker Data (and at the Customer's expense) obtain from any third party such agreements and waivers of any security interest that third party has in respect of the Goods, to ensure that at all times Dicker Data has a first priority security interest in the Goods.
8.3 The Customer waives its rights to receive a copy of any verification statements under the PPSA and agrees that as between Dicker Data and the Customer:
(a) the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the PPSA; and
(b) where Dicker Data has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
9.1 The Customer indemnifies Dicker Data from and against any costs, losses, liabilities (including legal and other professional expenses on a full indemnity basis), claims, demands, damages, fines and penalties including any consequential or indirect losses, economic losses or loss of profits arising directly or indirectly from a breach by the Customer of its obligations under these Terms of Sale.
9.2 Dicker Data will not be responsible for any loss or damage however caused to any person or to the property of the Customer, End Users or any third party as a result of any defect in the Goods (whether patent or latent), and the Customer indemnifies Dicker Data against any claims made against it by any End User or other third party arising out of any such defects.
9.3 Dicker Data will not be liable to the Customer, any End Users or third parties as a result of the suspension of access to on-line services under clause 3.4(d).
9.4 Dicker Data’s liability in respect of any claim that any Goods are defective will be limited to:
(a) the replacement of the Goods or the supply of equivalent Goods;
(b) repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) the payment of the cost of having the Goods repaired, whichever Dicker Data in its absolute discretion thinks fit.
9.5 Dicker Data will have no liability to the Customer, End Users or third parties under any claim arising out of or relating to a Subscription, including the suspension or disablement of access to, or non-provision of, on-line services in accordance with the Supplier’s and/or Dicker Data’s terms and conditions of use.
9.6 To the maximum extent permitted by law Dicker Data:
(a) excludes all warranties, representations or guarantees (whether express, implied or statutory) in relation to the Goods, including, without limitation, any warranty of fitness for any particular purpose; and
(b) will not be liable for costs, damages, expenses or losses (whether direct or indirect) incurred by the Customer or any third party as a result of Dicker Data’s actions or omissions, nor liable in contract or in tort or otherwise in any way.
9.7 Nothing in these Terms of Sale or in the Returns Policy excludes, restricts or modifies the application of any provision of the Fair Trading Act 1986 or the Consumer Guarantees Act 1993 or any other relevant New Zealand legislation which by law cannot be excluded, restricted or modified.
9.8 To the extent that the Customer acquires, or holds itself out as acquiring, Goods from Dicker Data for the purposes of a business, in terms of section 43(2) of the Consumer Guarantees Act 1993, the Customer will not assert, or attempt to assert any rights or claims against Dicker Data under the provisions of that Act.
10.1 No waiver by Dicker Data of any breach, or failure to enforce any provision, will operate as a waiver in respect of any subsequent breach.
10.2 Dicker Data may vary these Terms of Sale from time to time by:
(a) written notice to the Customer specifying the variation(s) ("notification"); or
(b) posting the variation(s) on the Website,
and any such variation will apply in respect of Goods ordered by the Customer after the date of notification or posting, as the case may be.
10.4 These Terms of Sale, as varied from time to time, constitute the entire agreement between the parties and the Customer acknowledges that no representations have been made by Dicker Data or on its behalf which have induced the Customer to enter into these Terms of Sale or to place an Order.
10.5 These Terms of Sale are governed by the laws of New Zealand. The Customer agrees that any proceedings which may be instituted against it for the recovery of any amounts owing to Dicker Data or enforcing any other obligation arising under these Terms of Sale may be issued in the Court at Auckland, being the place where Dicker Data's registered office is located and where this contract arose.
10.6 The Customer (and any person accepting these Terms of Sale on behalf of the Customer) warrants that it has the appropriate authority to accept these Terms of Sale.
10.7 The Customer acknowledges that it accepts these Terms of Sale to the exclusion of any standard terms it may have for purchases. No modification, alteration, or addition to these Terms of Sale will be binding on Dicker Data unless accepted in writing by an authorised Dicker Data signatory.
10.8 If any provision of these Terms of Sale is or becomes invalid or unenforceable, that provision will be deemed deleted from these Terms of Sale. The invalidity or unenforceability of that provision will not affect the other provisions of these Terms of Sale, all of which remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.