TERMS AND CONDITIONS OF TRADE

These Terms and Conditions of Trade apply to all Products and Services supplied to you by MakaNet (“MakaNet”, “us”, “we”, “our”).

The varied terms will apply to all purchases of Products and Services by you after the date the varied terms are posted. It is your responsibility to regularly check our website to ensure that you are familiar with our latest Terms.

1. Defined terms

1.1 In these Terms, unless the context otherwise requires:

“Confidential Information” means information, know-how or data of a proprietary or confidential nature, whether existing in hard copy or soft copy form, received by either party from the other;

“Days” means any day of the week other than Saturday, Sunday or a statutory public holiday;

“GST” means goods and services tax as defined in the Goods and Services Tax Act 1985;

“Including” (and “includes”) means without limitation to the generality of the surrounding words;

“Intellectual Property” means any intellectual or industrial property (whether registered or not) including, patents, patent applications, copyright, designs, trademarks, service marks, trade secrets, computer code (including source, library, object, and executable code), inventions and logical sequences;

“Proposal” means our response to your stated business needs;

“Services” means the services listed on the MakaNet services menu;

“Supplier” means our supplier(s);

“Supplier Terms” means the any terms that the Supplier requires an end-user, such as you, to comply with in relation to a Service or Product;

“Terms” means these Terms and Conditions of Trade; and

“You” means you, as the individual or legal entity, who is party to these Terms.

2. Price

2.1 We will provide the Products and Services to you at the price and in the volume specified in the MakaNet free consultation quote.

2.3 Any discounts or rebates on Products and Services will be applied in accordance with the relevant terms of the MakaNet sales contract for services.

2.4 Unless otherwise stated in our Proposal, our price is, and stated as being, exclusive of GST.

2.5 You will pay to us in addition to the price of the Products and Services, all GST and any other government duties, levies, or taxes in respect of the supply of Products and Services; and all freight, delivery and transport, insurance charges, and installation costs in respect of the Products.

2.6 The Customer agrees to pay adjusted prices arising from any correction of errors or omissions on the part of MakaNet or any of its representatives

3. Payment

3.1 All Products and Services provided will be invoiced to you on a monthly basis. All invoices will be sent to you by email to your nominated email address. Invoices will be deemed delivered the next Day after successful email transmission.

3.2 You must pay us for the Products and Services by the 15th of the month following the month in which our invoice is issued.

3.3 Subject to clause 5.1, you agree to pay each invoice in full, without deduction by way of set-off, counterclaim, or any other legal or equitable claim.

3.4 If for any reason you cannot pay any portion of the invoiced amount by the invoice due date, then you must notify us immediately and before the invoice due date. If we agree to you paying us the invoice amount under an alternative payment arrangement, then the invoice amount must be paid in accordance with that payment arrangement. Failure to comply with any terms of the payment arrangement constitutes a material breach of these Terms and the invoice amount (together with all late payment charges and interest as specified in the payment arrangement) will become immediately due and payable to us in full.

3.5 Payment is made only when funds have cleared through the banking system into our bank account.

3.6 A credit card surcharge of [3%] will apply to all amounts paid by credit card.

4. Default

4.1 Except where there is a genuine dispute pursuant to clause 5.1, if payment is not made in full in accordance with clause 3.2 or by the due date specified in the alternative payment arrangement that we agree to under clause 3.4, you are in default and we are entitled to charge you interest until we have received payment in full. Interest is currently charged on overdue accounts at the end of the month at a rate of 2.5% (minimum $10.00) per month compounding until payment in full. We may also charge you costs (including collection costs and legal costs on a solicitor-client basis) and suspend delivery of further Products and Services until the account (and interest) is paid in full. The charging of interest does not constitute a grant of credit and is in addition to our other rights and remedies arising out of the default.

4.2 Without limiting clause 4.1 and unless expressly stated otherwise, all payments shall immediately become due and payable to us if:

(a) You materially breach any provision in these Terms;
(b) We reasonably believe that you have failed to give us correct information satisfactory to us within 5 Days of our request;
(c) You sell or otherwise dispose of any Products which you have not fully paid us for, without our prior consent;
(d) You become insolvent, or commit any act of bankruptcy;
(e) A receiver, liquidator or statutory manager is appointed over any of your assets or undertaking;
(f) You make or attempt to arrange or composition with any of your creditors; or
(g) If you fail to comply with any of the provisions of clause 8 (Security Interest).

5. Disputed Invoices

5.1 If you have a genuine dispute in relation to an item on any invoice, you must pay the undisputed portion of the invoice as soon as it becomes due, and the matter in dispute will then be resolved by agreement with us within 10 Days if possible, failing that, the dispute will be dealt with under clause 14 (Disputes).

5.2 You must notify us in writing, together with all relevant, of your dispute in relation to an invoice within 7 Days of receiving the relevant invoice. If you do not raise any dispute within this timeframe, then you are deemed to have accepted the invoice and must pay the entire invoice amount by the due date without deduction or set-off.

6. Your Obligations

6.1 In purchasing Products and Services from us, you agree that you will:

(a) comply with the relevant Supplier Terms as notified to you from time to time;
(b) not use the Products or Services in a way which:

(i) breaks any laws;
(ii) breaches these Terms or the Supplier Terms;
(iii) infringes anyone’s rights;
(iv) is malicious, obscene or offensive;
(v) damages or compromises the security of our network or any of our Suppliers’ networks;

(c) not resell the Products or Services to anyone.

6.2 We may install the Products and carry out other work at your premises in order to provide you with the Services. You must give us, and our contractors and agents access as and when we reasonably require for the purpose of installing, maintaining, monitoring and removing the Products or carrying out work in connection with the provision of the Services to you.

6.3 If you require us to use any equipment or hardware (“Customer Equipment”) in the provision of the Services to you, then you are responsible for ensuring the compatibility of that Customer Equipment with our Services. We will not be responsible for any loss or damage you suffer as a result of any delay or fault in the operation of the Services due to Customer Equipment being defective, faulty or otherwise incompatible with the Services.

6.4 You agree to indemnify and hold harmless, us from and against any loss or damage (including any direct or indirect damages, loss of profit, consequential, indirect or special loss), liability, cost, claim, damage, expense, proceeding or demand (including reasonable legal fees on a client and own solicitor basis, expenses and settlement costs) which may at any time suffer or incur, or which may be made against us or our Affiliates (or both), as a result of, or in connection with, your obligations under these Terms.

7. Retention of Title

7.1 Ownership of the Products will not pass to you until we receive payment in full of the purchase price for the Products and all other amounts you owe to us for any reason.

7.2 Where Products are in your possession or control, but ownership has not passed to you:

(a) You will keep the Products insured to their full insurable value against loss or damage in our name as unpaid vendor;
(b) You hold the Products as bailee for and are in a fiduciary relationship with us;
(c) You will keep the Products separate and readily identifiable;

7.3 If you default in payment of an invoice (other than in respect of an amount to which a dispute under clause 5.1 applies) we (and our agents) will be entitled, upon notice to you and as your agent, to enter any land or premises where the Products are kept and take possession of and/or remove, and at our discretion sell or otherwise dispose of those Products, and credit any sale proceeds toward the moneys you owe us, without prejudice to any other remedy available to an unpaid vendor at law or equity. In exercising our rights under this clause, we will take reasonable care to avoid damage to your premises but will not be liable to you for any damage caused.

8. Security Interest

8.1 For the purposes of the Personal Property Securities Act 1999 (“PPSA”), you grant a security interest to us in any Products that we have sold or supplied to you, to secure the price payable for the Products (and any interest or other charges payable in relation to the Products) and to secure all monies payable by you to us at any time on any account. You further agree that our security interest in the Products extends to the “proceeds” (as defined in section 16 of the PPSA) of the Products that we have sold or supplied to you.

8.2 As and when required by MakaNet the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable MakaNet to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce MakaNet’s Security Interest in respect of the Goods supplied, in accordance with the Personal Property Securities Act 1999 (“PPSA”).

8.3 We may at our sole discretion and in such manner as we determine allocate payments made by you to outstanding amounts due in relation to any Products and Services supplied by us.

8.4 You acknowledge and agree that:

(a) the security interest will continue until we give you a final release;
(b) Goods are not purchased for use primarily for personal, domestic or household purposes.
(c) you will not move the Products that we have sold or supplied to you outside New Zealand until all outstanding amounts due in relation to the Products have been paid by you; and
(d) you will not do or omit to do or allow to be done or omit to be done, anything which could adversely affect the Products, or the security interest created by these Terms.

9. Risk and Delivery

9.1 You are responsible for risk of loss or damage to the Products from the time you receive them, or once they are delivered to your premises or the location that has otherwise been agreed.

9.2 We will endeavor to ensure the Products are delivered on time, and that the Services are performed promptly, but we will not be liable to you for any loss or damage arising in any way from any delay in delivery or part delivery of the Products, or delay in the performance of Services. Delay in delivery or part delivery of the Products or in the performance of Services, does not entitle you to cancel any order or delay the payment of any amount in the relevant invoice.

9.3 Where you ask us to deliver Products directly to another person, that person takes possession of the Products for you as your agent, but you are still directly responsible to us for those Products (including payment of the invoice amount) under these Terms.

9.4 All claims for short delivery or damage during delivery must be made to the carrier within 7 Days of the date of delivery or such other timeframe notified to you. Where Products appear to be damaged or missing you must immediately advise the carrier and us.

10. Warranty

10.1 Products supplied by us is subject to the manufacturers’ warranties only. We will pass on the benefit of those warranties to you to the extent that we are reasonably able to do this, but without being liable to you, under any warranty.

11. Intellectual Property and Confidentiality

11.1 You acknowledge and agree that all Intellectual Property relating to Products and Services remains our property, or the property of any Supplier entitled to it, and neither us nor our Suppliers transfer any right, title or interest in the Intellectual Property in any Product or Service to you.

11.2 You will not dispute any ownership of any Intellectual Property or challenge the validity of the Intellectual Property referred to in clause 11.1.

11.3 You acknowledge that from time to time you may have access to our Confidential Information. You agree and undertake to us to keep our Confidential Information confidential and not disclose our Confidential Information to any third party or use our Confidential Information for your own benefit or for the benefit of any other person or in any way exploit our Confidential Information, nor will you provide any person with a copy of or disclose to any person the contents of any document containing our Confidential Information.

11.4 MakaNet will not be responsible for any loss as a result of a breach of MakaNet’s intellectual property rights. The Customer agrees to indemnify MakaNet against any loss or expenses incurred (including costs on a solicitor client basis) which arises as a result of a breach of MakaNet intellectual property rights.

12. Limitation of Liability

12.1 To the maximum extent permitted by law all conditions, warranties and representations in respect of the quality, merchantability, fitness for purpose, condition, description, manufacture, design or performance (or otherwise) of the Products and Services, whether implied by statute, common law, law merchant, trade usage, custom or otherwise, are expressly excluded.

12.2 You acknowledge and agree that there may be times where our Services will not be available, fully functioning or error-free.

12.3 Notwithstanding any other provision in these Terms, the total liability of MakaNet Services to you for any costs, claims, losses and expenses made against you or incurred by you resulting from any cause whether arising at law (including negligence), by statute, in equity or otherwise arising from the relationship between you and us is limited to the lesser of:

(a) Direct losses or damages up to the value of the Products or Services that we have supplied to you in the 3-month period immediately preceding the month in which the event on which the claim is based occurred; or

(b) $10,000.

12.4 For the purposes of this clause 12, direct losses or damages excludes:

(a) any losses or damages arising from delay, increase in operating costs, loss of profit, use, production, income, business, loss or corruption of information, data or records, contract or goodwill of any person;
(b) any indirect or consequential loss; and
(c) any loss resulting from liability to any third party.

12.5 Except as provided in clause 12.3, our liability and any liability of our Affiliates to you, whether in tort (including negligence), contract, breach of statutory duty, equity or otherwise arising from the relationship between you and us and any of our Affiliates is excluded to the fullest extent permitted by law.

12.6 We will not be liable to you for any losses, costs or damage caused by events beyond our reasonable control, including but not limited to any external factors affecting of the delivery of the Products or performance Services, including telecommunications and network breakdowns and power surges.

12.7 The provisions of this clause 12 survive termination of these Terms.

13. Return of Goods

13.1 MakaNet will not accept the return of Goods for credit or any other purpose unless MakaNet first agrees to accept the return of the Goods in writing and advises the Customer a return advice number prior to the return of Goods.

13.2 Return of Goods will only be accepted for credit within 14 days of delivery, unless any delay is due to MakaNet’s error. Return freight will be at MakaNet’s cost only when there has been an error on MakaNet’s part.

13.3 No returned Goods shall be accepted by MakaNet (even if MakaNet has previously agreed to do so) if they have been tampered with by the Customer or any other person, if they are Goods expressly sold on a non-return basis, or if they are not accompanied by the return advice number referred to in clause 13.1.

13.4 Where Goods are returned to MakaNet but not accepted as above, they shall be returned to the Customer at the Customer’s expense or retained by MakaNet at MakaNet’s election. Receipt by MakaNet (or by any of MakaNet’s agents or representatives) of any Goods returned other than in accordance with clauses 13.1 and 13.2 shall not constitute nor be deemed to constitute MakaNet’s acceptance of the return of the Goods for credit or any other purpose.

13.5 Any request for cancellation of services must be in writing to your account manager or to the MakaNet Finance Department and is subject to a 90-day notice period unless the service(s) are contracted, in which case the cancellation date will be the later of:

(a) The 90-day notice period
(b) Contract end date

14. Consequences of your default

14.1 To the extent permitted by law, if you breach these Terms or any other payment obligation to us:

(a) We may immediately cancel, suspend or restrict the provision of Services to you.
(b) Each security interest created in our favor will become immediately enforceable.
(c) We may, at any time, by notice to you declare all or any part of the moneys you owe us to be due and payable immediately, upon demand or later as we may specify.
(d) We may:

(i) Take possession of and either sell or retain the Products;
(ii) Pay any expenses incurred in the exercise of any such powers out of the revenue from, or proceeds of realization of, the Products; and
(iii) Appoint a receiver in respect of any Products (without your consent) and any receiver is authorized to do anything referred to in these Terms and otherwise to exercise all rights and powers conferred on a receiver by law.

(e) You will pay all of our costs, losses and other liabilities (including legal expenses on a solicitor-client basis) incurred or sustained by us in connection with the exercise, enforcement or preservation, or attempted exercise, enforcement or preservation, of any right arising pursuant to the security interest granted under these Terms.

(f) We have all other rights conferred by law (including under Part 9 of the PPSA) in relation to the Products and may, in your name or otherwise, at any time, do anything that you could do in relation to the Products.

14.2 If requested by us, you must promptly do all things (including signing any document) and provide all information necessary to enable us to perfect and maintain the perfection of any security interest granted to us by you (including the registration of a financing statement). You must give written notice to us immediately if you change the name of your company.

14.3 Where we take possession of the Products under clause 13.1, we may sell the Products by any means at any time. From any proceeds resulting from such a sale, we may deduct all costs incurred in connection with the sale and all moneys owed (even if not invoiced) to us by you on any account (to the extent to which we have priority over any other interested parties). Nevertheless, we may recover from you any shortfall from a sale or attempted sale under this clause 13.3.

14.4 Nothing in these terms limits or otherwise adversely affects our rights under the PPSA. You waive your rights under sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA and your right to receive a copy of the Verification Statement or a Financing Change Statement relating to our Security Interest.

15. Disputes

15.1 If the parties cannot resolve any dispute concerning these Terms, the Products or the Services, then either party may initiate the dispute resolution procedure set out in this clause 14 by giving written notice to the other party and naming its representative. The party receiving the notice must within 10 Days give written notice to the other party naming its representative. Each representative must have authority to settle the dispute.

15.2 Within 10 Days after the parties have been advised of each other’s representatives, the representatives must enter negotiations to try to resolve the dispute.

15.3 If the dispute is not resolved within the following 10 Days then the parties must immediately refer the dispute to mediation.

15.4 The mediation must be conducted in accordance with the Resolution Institute Mediation Rules. The mediation must be conducted by a mediator (and at a fee) agreed by the parties. Failing agreement between the parties, the mediator will be selected, and his/her fee determined by the Chair for the time being of Resolution Institute.

15.5 Any dispute covered by this clause 14 which cannot be settled by mediation within 10 Days of the matter being referred to mediation, will be submitted to arbitration before a single arbitrator appointed by the President of the New Zealand Law Society, in accordance with the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule). The decision of the arbitrator will be final and binding.

15.6 Nothing in this clause 14 will preclude either party from taking immediate steps to seek urgent equitable relief before a New Zealand Court.

16. Privacy

16.1 You authorize use to collect, use, disclose and store your personal information (as defined in the Privacy Act 1993) for the following purposes:

(a) providing the Products and Services to you;
(b) undertaking credit checks;
(c) marketing our Products and Services to you;
(d) administering and enforcing MakaNet Terms; and
(e) our general business purposes.

16.2 You may request access or correction of your personal information held by us by email or telephone listed on invoice.

17. General

17.1 You confirm to us that you are “in trade” and agree with us that despite anything else contained in these Terms:

(a) the Products and Services supplied under these Terms are supplied and acquired “in trade” within the meaning of the Fair Trading Act 1986 and the Consumer Guarantees Act 1993;
(b) everything supplied under these Terms to you will be acquired by you solely for your business purposes;
(c) the following statues and provisions will not apply to these Terms or to any Products and Services supplied under these Terms:

(i) The Consumer Guarantees Act 1993; and
(ii) Sections 9, 12A, and 13 of the Fair Trading Act 1986; and

(d) it is fair and reasonable to exclude the application of those statutes and provisions; and
(e) You acknowledge that you have had a reasonable opportunity to review these Terms, discuss these Terms with us, and receive advice from your legal advisors, if you wished to do so.

17.2 If we fail to enforce any terms or to exercise our rights under these Terms at any time, we have not waived those rights. Any waiver or variation of these Terms that is agreed to will not be effective unless signed by both parties.

17.3 You may not assign your rights or obligations under these Terms without our prior written consent. We have the right to assign our rights and obligations at any time without your consent.

17.4 Notices will be deemed delivered 2 Days after posting, the following Day after successful email transmission and receipt by you or your agent if hand delivered.

17.5 These Terms will be governed by and construed in accordance with the laws of New Zealand and the parties irrevocably submits to the exclusive jurisdiction of the courts of New Zealand.

17.6 These Terms and any Proposal form the entire agreement between us relating to their subject matter and supersede any prior agreements and undertakings between us with respect to that subject matter.

17.8 These Terms are deemed incorporated into any and each Proposal, quote or estimate that we provide to you.