General Terms and Conditions (Business)

1. Definitions and Interpretation

In these Conditions, the Rate Schedule and every Quote, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by ITstuffed the following words have the following meanings:

• “After Hours” means from 17:00 – 09:00 hours Monday to Friday and all day Saturday and Sunday, including Public Holidays.
• “Business Hours” means Monday to Friday from 09:00 to 17:00 hours excluding Public Holidays.
• “Client”, “You” or “Your” means a person who seeks or obtains a quote for, or who orders, Goods or Services from Us, and includes both a person whose name is on the Order or on an email attached to which is an order, a person who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears an order is placed, and in any case each of their heirs, successors and assigns.
• “Conditions” means these terms and conditions.
• “Goods” means any goods and/or services sourced by Us or provided by Us in connection with any such goods and/or services including computer hardware and Software and any goods or services provided in connection with any of those things.
• “GST” has the meaning given to it under the Goods and Services Tax Act 1985.
• “Order” means any order requested by You to Us for Goods or Services in any form.
• “Quote” means a quote provided to You by Us.
• “Period” means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between Us and You as the period during which some Services will be provided.
• “Plan” means any arrangement between Us and You (whether alone or in conjunction with any other person) for Services (including unlimited support) and/or the provision of Goods provided by Us under an arrangement in connection with Work agreed to be done or progressed for or on behalf of You or any other person at Your request, including as set out in a Plan Schedule.
• “Plan Schedule” means the key terms applicable to Plans as set, and as may be varied by Us, from time to time in its absolute discretion without notice to You.
• “Public Holidays” means any day which is a public holiday throughout Canterbury.
• “Rates” means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Rates Schedule, a Plan, Plan Schedule, Quote, contract or arrangement entered into by Us and You or in these Conditions, and includes any monies payable to Us on a quantum meruit basis for any work it has done.
• “Rate Schedule” means the schedule of rates, charges and conditions for the services of Ours as set, and as may be varied, by Us from time to time in its absolute discretion without notice to You.
• “Reasonable Assistance Limits” has the meaning set out in clause 17.2.
• “Return/Cancellation Fee” means a fee charged pursuant to clause 12.5 as set by Us from time to time.
• “Service request” means a request for service such as adds, moves, changes and technical assistance.
• “Services” means the provision of any services by Us including Work, advice and recommendations.
• “Software” includes software and any installation, update, associated software and any services provided in connection with any of these things.
• “Us”, “Our” or “We” means ITstuffed Ltd (NZBN: 9429046086938) and its heirs, successors and assigns.
• “Work” means anything We may do, provide, customise, produce or acquire, whether or not in connection with, or for the purposes of, You or Your use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items.

In these Conditions, unless the contrary intention appears:

• Words denoting the singular number only shall include the plural number and vice versa.
• Reference to any gender shall include every other gender.
• Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions.
• All references to dollars ($) are to New Zealand Dollars.
• A reference to time is to NZ Standard Time.
• A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa.
• A reference to “includes” means includes without limitation.
• A reference to “will” imports a condition not a warranty.
• A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect under the law of any applicable jurisdiction.

2. Application of These Conditions

Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and are applicable to the terms of every Quote, Order or Plan in connection with the supply of Goods and/or Services by Us to You.

The invalidity or enforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.

3. Commitment Term

The minimum term that You acquire the service for is outlined in Our Quote or Managed Service Agreement to You, beginning from the first of the next month after the date of signing or approving the Quote or Managed Service Agreement.

After the expiry of the Committed Term, an extension of the Term will automatically commence for the same period as the original Committed Term and will continue indefinitely, unless earlier terminated by you as specified in Clause 4.

4. Termination

This Agreement may be terminated by You upon ninety (90) days written notice to info@itstuffed.co.nz if We:

• Fail to fulfil in any material respect its obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of such written notice.
• Breach any material term or condition of this Agreement and fail to remedy such breach within thirty (30) days of receipt of such written notice.
• Terminate or suspend our business operations, unless it is succeeded by a permitted assignee under this Agreement.

This Agreement may be terminated by Us upon ninety (90) days written notice to you.

If either party terminates this Agreement, we will assist you in the orderly termination of services, including timely transfer of the services to another designated provider. You agree to pay us for rendering such assistance at our normal rates as outlined in our current Rate Schedule.

Should You wish to terminate this Agreement before the end of the commitment term, You agree to pay all of the remaining payments up until the end of the commitment term.

5. Representations

You acknowledge that no employee or agent of Ours has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.

6. Notices

Any notices given under the Conditions shall be in writing and sent by e-mail to the last notified e-mail address of Yours.

7. Governing Law

The Conditions shall be governed by and construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.

8. Assignment

You may not assign Your rights and obligations under this Agreement without the prior written consent of Us.

9. Variation of These Terms and Conditions

We may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on Our website. You accept that by doing this, We have provided You with sufficient notice of the variation. We are under no other obligation to notify You of any variation to these terms and conditions.

10. Quotes

• Term and effect: Quotes will only be valid for 7 days unless otherwise specified in the Quote. A Quote is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.
• Once a quote has been confirmed by Us, the prices in the quote will be confirmed as the final agreed price. A quote is confirmed as ‘final’ as soon as both parties agree with the final price after any last changes requested by You.
• The price in the final quote may vary from the original request if there is any price or product changes requested by You. We reserve the right to alter product and prices in the quote, as long as the quote has not been confirmed with You.
• Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If You later require any changes to the quotes, and We agree to the changes, these changes will be charged at Our prevailing rate.
• Once the Quote has been confirmed and converted to an Order, the Order will be subjected to our normal Terms and Conditions of Sale.
• The general minimum turnaround time for Quote request to be actioned is usually 24 hours. In the event that a quote is required urgently please let us know so that we can respond accordingly.
• When a special price or discount offer has been applied to this Quote, no other special promotion, discount or bonus offer will be applicable.
• In the event that products in the Quote are subjected to any price and supply fluctuations outside of Our control, We reserve the right to update the price and product in the Quote accordingly.
• Price on non-stocked products are subject to price and stock fluctuations and can only be confirmed once the Quote is turned into an Order.
• Once a Quote has already passed the expired date, We may cancel the quote or estimate without having to notify or receive an approval from You.
• ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.
• Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.
• We do not keep inventory and as such only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply.
• Prices are based upon total Quote Purchase.
• Unless specified, all items on quote are covered by manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.
• Varying or withdrawing Quotes: We may vary or withdraw a Quote at any time in Our absolute discretion and without prior notice to You, including where the Goods or Services become unavailable or the cost price increases after the date of the Quote.

11. Orders

• Order forms: You may place an Order for Goods and/or Services with Us by providing either a completed Order form or approving the quote electronically via email or a web-based system, including Your full legal name, NZBN or charities registration number where applicable, Your address and any relevant Quote number and date.
• Approval of Orders: You will need to sign the Order or have it duly executed on Your behalf, unless the Order is sent by email or via the web-based ordering system, in which case the Order is deemed signed by the person whose name appears as the sender.
• Reliance on appearance of validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of an Order. Any person signing or sending an Order warrants that the Order is duly authorised.
• Acceptance and Orders: An Order has no effect unless or until it is accepted by Us in writing and until We have received payment in clear funds for the Order and any related freight, delivery and in-transit insurance costs.
• No obligation to deliver: We are not obliged to deliver any Order until we have received payment in clear funds from You.
• Credit checks: For the purposes of ascertaining the credit standing or history of a prospective customer, You hereby consent to Us undertaking a credit reference check in respect to You.
• Cancellation of Orders: You will not cancel an Order unless We agree to do so in writing in Our absolute discretion. You acknowledge that We cannot cancel an Order once the manufacturer or supplier has despatched the relevant Goods.
• Processes and Procedures: You agree to co-operate with Us and to comply with Our processes and procedures as advised to You from time to time.

12. Pricing and Rates

• Rates exclude Tax: All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of GST and any other applicable taxes or government charges (unless otherwise stated in writing by Us).
• Rates Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time.
• Vary Rates: We reserve the right to vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), in our absolute discretion and without notice to You.
• Call-out fees: You acknowledge that call-out fees may be charged in addition to the Rates at Our absolute discretion and that the amount of the call-out fee will depend upon where the Services are provided.
• Return/Cancellation Fee: Where We arrange a return or refund on behalf of You, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation fee to cover administration costs.
• Expenses: You must pay any out-of-pocket expenses incurred by Us in providing the Services to You in addition to the Rates, charges and call-out fees, upon written demand. Such expenses will include travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses.
• Separate charges for Goods and Services: We may in Our absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.
• Calculation of increments: Where a charge is calculated based on increments of time, We will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment.
• Change in underlying costs: Where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services, We may vary any of Our Rates.
• Pre-Paid Blocks of Service: Where You agree to buy Pre-Paid Blocks of Service during a Period, payment must be made in advance. Services remaining unused for that Period cannot be rolled over into any subsequent Period and We are not liable to refund or compensate You in respect of those unused Services.

13. Services and Plans

• Service and Plan Variations: We may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services without notice to You, from time to time in Our absolute discretion.
• Copies on Request: We will provide You with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for particular Plans and are available to Clients participating in the Plan.

14. Contracting

We may subcontract any or all of the Services to be performed, but shall retain prime responsibility for the Services under these terms.

15. Delivery, Title and Risk

• Delivery liability: We will use all reasonable endeavours to despatch Goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond Our reasonable control, including failures in supply or delays caused by third parties.
• Availability to accept delivery: You must be available to accept the Goods at Your nominated delivery address during Business Hours unless otherwise arranged.
• Passing of Risk: Delivery is deemed to take place when the Goods are delivered to Your nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to You.
• Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery.
• Retention of Title: Until We receive full payment in cleared funds for any moneys due to Us by You on any account: title to, and property in, Goods supplied to You remain vested in Us and do not pass to You. You must hold those Goods as fiduciary bailee and agent for Us and must not sell them. We may, without prior notice, enter any premises where We suspect those Goods may be and take possession of those Goods.

16. Returns and Claims for Goods and Services

• General Returns Policy: You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier.
• Customised Goods not returnable: Where Goods have some element of customisation, are special or unusual, obtained from overseas, or are otherwise not readily returnable by Us to the manufacturer or supplier, You may not return the Goods to Us.
• Duty to inspect: You will inspect all Goods immediately upon their delivery. Within 7 days of such delivery You may give written notice to Us of any matter by reason of which You might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, You will accept the Goods without any return, refund or claim.
• Return Condition: Where You are entitled to return Goods, You must return the Goods in their original condition and unopened, provided always that where upon opening it becomes apparent that the Goods are faulty, they may be returned.
• Return costs: You will pay all costs and expenses incurred by Us in arranging the return of the Goods to a manufacturer or supplier unless that manufacturer or supplier pays such costs.

17. Computer Utility, Functionality and Fitness for Purpose

• Service limitations given the science of computing: You acknowledge that a reasonable incident of the Services may involve trial and error. While We will make all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations, You will always indemnify and hold Us harmless in the provision of our Services to You.
• Reasonable Assistance Limits: We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances. Without limiting Our discretion, reasonable assistance is normally limited to work done during Business Hours over a period of time not exceeding any period that We have allowed or estimated for the Work.
• Recommendations, suitability, functionality and fitness for purpose: You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment, and accordingly You will accept the sole responsibility for decisions as to whether or not to follow recommendations by Us and any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services. Where We provide Services with a view to achieving Your purposes, You must pay for those Services on time, whether or not We are able to achieve those outcomes, provided always that We have acted in good faith.
• Testing Procedures: You will follow the instructions of Ours with regard to testing or troubleshooting any problems.

18. Force Majeure

If We are unable to supply any Goods or Services due to circumstances beyond Our reasonable control, We may cancel the Order or cease to provide the Services by written notice to You, in which case You will hold Us harmless.

We will not be liable for any breach of contract due to any matter or thing beyond Our control, including failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, wars, riots or civil commotion, intervention of public authority, explosion or accident.

19. Product Specifications

• Alterations to Specifications: We make every effort to supply the Goods in accordance with the Order; however We may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer after the Order date and before delivery.
• Substitute Goods: If We cannot supply the Goods ordered by You, We may supply alternate Goods of equal or superior quality; provided however that You will not pay a higher price than the price Quoted or otherwise agreed.

20. Warranties

• Reliance on Manufacturer’s Warranty: You will rely on the warranties provided by the manufacturer of Goods supplied by Us (where applicable) and will deal direct with such manufacturer rather than Us for all claims covered by such warranties.
• No claim for manufacturer’s default: You indemnify and hold Us harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to You by Us, of any of the obligations of such manufacturer in respect of such Goods.

21. Liability

• Exclusion: Except as specifically set out herein and so far as may be permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
• No liability for program or data loss: You indemnify and hold Us harmless in respect of any allegation, claim, loss or expense of Yours or any third party for any program or data loss or damage. You acknowledge You are solely responsible for backing up Your programs and data.
• Limit on consequential damage: You indemnify and hold Us harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by You or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill.
• Limit on damage from a failure in supply: You indemnify and hold Us harmless for any allegation or claim for loss or damage by You or a third party where We have failed to meet any delivery date or cancel or suspend the supply of Goods or Services.
• General limit on liability: Except as otherwise expressly stated in these terms and conditions, We are not liable for any loss or damage of any kind however caused (including by the negligence of Us) which is suffered or incurred by You in connection with Goods or Services provided, these Terms and Conditions, Your use of Our website, the non-availability of Goods or Our Services for any reason, or any act or omission of Ours.
• Limitation options: To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, Our liability for any breach of that condition or warranty is limited to: replacing the Goods or supplying equivalent Goods, Services or Work; repairing the Goods; paying the cost of replacing or repairing the Goods; or paying the cost of acquiring equivalent Goods, Services or Work — at Our election.
• Laws still apply: Nothing in these Conditions is to be interpreted as excluding, restricting or modifying the application of any legislation applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.
• Severance: If any provision contained in the Conditions is unlawful, invalid or unenforceable, those provisions may be severed without prejudice to the validity and enforceability of the remaining provisions.

22. Errors and Omissions

We make every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, We may rescind the affected contract by written notice to You, notwithstanding that We have already accepted Your Order and/or received payment from You. Our liability in that event will be limited to the return of any money You have paid in respect of the Order.

23. Privacy Statements and Your Rights

We are collecting Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to you and it may be retained and used for such purposes.

We may disclose Your personal information to other persons for the purposes of the fulfilment of Quotes, Orders and Work for you or in order to provide Goods or Services to You, to verify the information You provide, or to confirm Your requirements. Otherwise We will not disclose Your personal information without Your consent unless authorised by law.

Your personal information will be held by Us at Our Principal Place of Business and You can contact Us to request to access or correct it. We rely on You to submit correct information and details where requested.

24. Our Website

We make no representations or warranties in relation to information available on Our website, including without limitation:

• That the information on Our website is complete or correct.
• That Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software.
• That We endorse any internet site linked to Our website or any third-party products or services referred to on Our website.

25. Insurance Coverage

We will maintain at Our own expense, commercial general liability insurance for personal injury and property damage for a general aggregate of $2,000,000. At Your request We will provide You with certificates evidencing such coverage within thirty (30) days of commencing this Agreement, at every renewal and at other times as may be reasonably requested by You.

26. Lodging of Service Requests

In order for Us to provide You with the agreed Service, You agree to follow Our process for lodging of Service Requests as outlined in Appendix A below.

27. Access to Systems, Sites and People

In order to provide You with the agreed Service, You agree to give Us access to various items of Yours including but not limited to, equipment, people and sites as and when required.

You agree to allow Us to install software on Your Equipment that allows Our technicians to access Your systems at any time to view system statuses, send monitoring information, see users’ desktops and control Your PCs. This may require that devices are left on overnight or weekends.

28. Third-Party Authorisations

At times We may need to contact Your third-party providers on Your behalf, such as Your internet provider. It is Your responsibility to ensure that We are able to deal freely with these providers.

29. Payment, Late Payment and Default

• Payment due date: All invoices issued to You are due and payable to Us within the terms stated on the invoice, by cash, credit card or direct deposit.
• 7 days late: Where You fail to pay an invoice within seven (7) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to You.
• Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by You. If You default in payment of any invoice, moneys which would have become due at a later date shall be immediately due and payable without any further notice to You.
• Interest: If payment of any Sum Due is not made on time, We will charge interest daily on the Sum Due at the maximum rate allowed by law, calculated from the due date until the Sum Due is paid in full.
• Application of funds: All payments will be applied: first towards costs and expenses; secondly towards interest due; and thirdly towards debts in order from longest standing due to most recently incurred.
• Security: We may require You to provide security over Your property as collateral to be held as security for any Sum Due or as a condition precedent to the continuation of supply.
• Power of Attorney: You hereby irrevocably appoint Us as Your attorney to do anything We consider fit for the recovery of the Sum Due or the creation, perfection or enforcement of any collateral held or to be held as security for any Sum Due.

30. Non-Solicitation of Clients and Employees

You agree that employees are one of Our most valuable assets. Our employees must not seek employment with, or be offered employment by You during the course of engagement and for a period of two (2) years thereafter (or the maximum amount permissible by a Court).

In the event You violate this provision, You agree to immediately pay Us 100% of the employee’s total annual salary as liquidated damages and We shall have the option to terminate this Agreement without further notice or liability to You.

31. Software

All Software licences are the responsibility of You and not that of Us. It is Your duty to store all licences for all Software used, including all Software installed by Us.

You indemnify and hold Us harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:

• Any unauthorised Software use by You.
• Any breach of any Software licence in respect of Software provided to Us by You to be installed on one of Your computers.
• Any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.

All copyright in custom software remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.

32. Copyright and Confidentiality

• Warranty and breach: You warrant that any confidential or copyright information or intellectual property provided by You to Us belongs to You. You indemnify and hold Us harmless in respect of any allegations, claims, loss, costs or expenses in connection with any breach of this warranty by You.
• Retention of title: All copyright and other intellectual property rights in any Work created, commissioned or acquired by Us in the course of the supply of Services by Us to You will be the exclusive property of Ours unless otherwise agreed in writing.
• Confidential Information: Both parties shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part of confidential information received from the other party, except as permitted in writing by the disclosing party or as required by applicable law.

33. Dispute Resolution

In case of any dispute, the party raising the dispute shall give the other party written notice specifying the particulars of the dispute. Both parties shall then, within five (5) Working Days or such other agreed time period, use best efforts to resolve any dispute through good faith negotiations.

If negotiations do not resolve the dispute, either party may refer the dispute to the Disputes Tribunal (if applicable). If the dispute cannot be referred to the Disputes Tribunal, either party may refer the dispute to mediation by a mediator agreed between the parties or appointed by the President of the New Zealand Law Society.

This clause shall survive the termination of any agreement, order, plan, contract or any other arrangement in connection with the supply of Goods and/or Services by Us.

When you contact us to lodge a service request, only the following methods must be used:

• Phone: 0800 487 883
• Email: support@itstuffed.co.nz
• Web Portal: support.itstuffed.co.nz/portal
• Tray Icon

Include a short description of the problem and any screenshots of errors to assist in the resolution of the issue.

If the issue is being lodged by either phone or external email you must include your name, company and return contact details.

Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.

Service Requests Outside of Business Hours

Service Requests that must be addressed outside of business hours must be lodged by phone (charges apply for after-hours work). If not, the Service Request will be viewed on Our next Business Day.