1. PRICE AND PRICE VARIATION
1.1 Prices quoted are excluding GST unless otherwise stated. Unless otherwise agreed in writing, the price of the goods will be the current price on the day of delivery of the goods. Prices do not include any delivery surcharges.
1.2 The Virus Centre shall be entitled to adjust any price quoted from time to time and the Customer agrees to pay any such adjusted price to take account of variations in the cost to The Virus Centre of carrying out the whole or any part of the contract arising from any of the following:
(a) Delays in delivery as a result of instructions or lack of instructions from the Customer, the Customer’s failure or inability to fulfill the obligations under the contract or any action or inaction by the Customer or other circumstances beyond The Virus Centre control;
(b) Variation in the cost of The Virus Centre acquiring the goods directly or indirectly, on account of changes in rates of freight and transport costs, insurance, customs duties, taxes, existing tariff classifications or any variation in currency exchange rates;
(c) Variations in the cost of rates of all statutory, government or local government or governmental authority charges and obligations; or
(d) Any correction of errors or omissions on the part of The Virus Centre or any of its representatives.
2.1 All goods and services sold are subject to Goods and Services Tax.
3.1 Unless otherwise agreed, the purchase price shall be paid to The Virus Centre by the 20th of the month, in which the invoices were dated. Payment will not be accepted by any means other than direct debit, cheque or direct credit.
3.2 If any account is in dispute, the undisputed portion of the account shall be payable in accordance with the normal terms of payment as provided in 3.1. Payment of the disputed portion may be withheld provided the matter is brought to The Virus Centre attention immediately it is discovered and a letter of explanation setting out the particulars of the dispute is sent to The Virus Centre within seven days of the dispute arising.
3.3 The Virus Centre reserves the right to suspend delivery of further goods if the terms of payment are not strictly adhered to by the Customer. If payment is not made by the 20th The Virus Centre reserves the right to cancel any serial numbers that have not been paid for in full and to deactivate any website login.
3.4 Interest may be charged on overdue accounts at 19.5%/pa by The Virus Centre until the account is paid off it full.
3.5 Any expenses, costs or disbursements incurred by The Virus Centre in recovering any outstanding monies including debt collection agency fees or solicitor’s costs shall be paid by the Customer.
3.6 All goods will remain the property of The Virus Centre until full payment has been received.
4. NEW ACCOUNT
4.1 Use of this account shall constitute acceptance of these terms and conditions.
4.2 The Customer shall not be liable for any indebtedness arising from the fraudulent use of the account provided that the Customer must on discovering the fraudulent use of the account immediately notify The Virus Centre of such fraudulent use. The burden of proving such use was fraudulent shall lie with the Customer.
4.3 The Customer shall endeavor to return all goods acquired by fraudulent use.
4.4 Any account that has been inactive for more than 6 months from the date of the last invoice will be deemed inactive and dealer login to the website will be terminated.
4.5 Any account that is made inactive will no longer entitled to any dealer rebates in the way of renewal commission or otherwise.
5.1 The Virus Centre shall deliver the goods to the address stated on the order or as agreed by The Virus Centre in writing.
5.2 The Virus Centre shall deliver the goods by such carrier and such form of transport The Virus Centre considers being appropriate.
5.3 Where you specify the carrier and the means of carriage, The Virus Centre shall deliver the goods in the way specified, the cost of such carriage being an additional charge to the invoiced price of the goods.
5.4 The Virus Centre will not be responsible for any part delivery or delay in delivery of the goods as a result of events occurring beyond The Virus Centre control. The Virus Centre shall not be in any way responsible for any consequences (direct or indirect) arising from such delay or non-delivery.
5.5 The Customer agrees to inform The Virus Centre within 30 days of the date of the invoice if proof of delivery is required. After this period, no liability will lie with The Virus Centre for proof of delivery.
6. PRIVACY ACT 1993
6.1 The Customer authorizes The Virus Centre to collect, retain, and use personal information about the Customer (including the information collected in this document) for the following purposes only:
(a) assessing the Customer’s creditworthiness.
(b) disclosing to third party details of this application and any subsequent dealings it may have with The Virus Centre for the purpose of recovering amounts payable by the Customer and providing credit references.
(c) marketing goods and services provided by The Virus Centre to the Customer.
6.2 The Customer, if an individual, has a right of access to information about the Customer held by The Virus Centre. The Customer may request correction of that information and may require that the request be stored with that information. The Virus Centre may charge reasonable costs for providing access to that information.
7. INTELLECTUAL PROPERTY
7.1 Where The Virus Centre has followed a design or instruction furnished by or given by the Customer, the Customer shall indemnify The Virus Centre against all damages, penalties, costs, and expenses of The Virus Centre or in respect of which The Virus Centre may become liable through any work required to be done in accordance with these instructions involving infringement of a patent, trademark, registered design or common law right.
7.2 Should The Virus Centre be required to replace packaging on the product, tolerance shall be allowed to such an extent as shall be agreed by The Virus Centre and the Customer at the time the standard color is specified and in the absence of any agreement a reasonable tolerance shall be allowed.
7.3 All information prepared by The Virus Centre including, without limitation, customised pricing, proposals, electronic catalogues, details of improvements and cost reductions, is the intellectual property of The Virus Centre and cannot be copied, altered, or distributed without The Virus Centre prior written consent. The Virus Centre will not be liable for any alterations made by you.
8. RETURN OF GOODS
8.1 The Virus Centre will not accept the return of goods for credit or any other purpose unless The Virus Centre agrees to accept the return of the goods. Return of goods will only be accepted for credit within 30 days of delivery, unless due to The Virus Centre error. Return freight will be at The Virus Centre cost only when there has been an error on The Virus Centre part.
8.2 No returned goods shall be accepted by The Virus Centre (even if The Virus Centre agree to do so) if you or any other person have tampered them with and are not as new. Where goods are returned to The Virus Centre but not accepted as above, they shall be returned to you at your expense.
8.3 Receipt by The Virus Centre of any goods returned other than in accordance with clauses 8.1 and 8.2 shall not constitute nor be deemed to constitute The Virus Centre Ltd acceptance of the return of the goods for credit or any other purpose.
9.1 Risk in the goods shall pass to you at the time when our obligations under the contract are deemed under clause 5 to be completed.
10. PPSA SECURITY INTEREST
10.1 The Customer grants to The Virus Centre a Security Interest in the goods and their Proceeds to secure the obligation of the Customer to pay the purchase price of the goods and any other obligations of the Customer to The Virus Centre under this contract (together “the Indebtedness”) and, where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the indebtedness, the security interest shall also extend to all the Customers present and after acquired software, of which the goods form part, to the extent required to secure the Indebtedness. This is not limited to or by future renewals of the software.
10.2 As and when required by The Virus Centre the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable The Virus Centre to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce The Virus Centre Security Interest in respect of the goods supplied, in accordance with the Personal Property Securities Act 1999 (“PPSA”).
10.3 The Customer shall not change its name without first notifying The Virus Centre of the new name, not less than 7 days before the change takes effect.
10.4 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by The Virus Centre in respect of each unpaid invoice/order on a pro rata basis PROVIDED THAT where The Virus Centre applies payments in this manner it shall not charge interest on overdue balances that would have been cleared if the payments were not allocated pro rata.
10.5 Until the Customer has paid all money owing to The Virus Centre the Customer shall at all times ensure that:
(a) the goods supplied by The Virus Centre, while in the Customer’s possession, can be readily identified and distinguished; and/or
(b) all Proceeds (in whatever form) that the Customer receives from the sale of any of the goods are readily Identifiable and Traceable.
10.6 Where the goods are purchased by the Customer as stock in trade for sale in the ordinary course of the Customer’s business, nothing in this clause shall prevent the Customer from selling and delivering the goods in the ordinary course of the Customer’s business. Otherwise, until the Customer has paid all money owing to The Virus Centre, the Customer shall not sell or grant a Security Interest in the goods without The Virus Centre written consent.
10.7 The parties agree to contract-out of the PPSA in accordance with Section 107 of the PPSA to the extent that Section 107 applies for the benefit of, and does not impose a burden on, The Virus Centre. The Customer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered by or on behalf of The Virus Centre in respect of the Security Interest created by these terms and conditions of trade.
10.8 For the purpose of this clause words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of, the PPSA.
11.1 The Consumer Guarantees Act 1993 and the Consumer Guarantees Act 1993 applies to this contract:
(a) if any of the goods fail to comply with any guarantee in the Consumer Guarantees Act, The Virus Centre will repair or replace those goods;
(b) without excluding The Virus Centre’s obligations under the Consumer Guarantees Act 1993, the Customer acknowledges that The Virus Centre Ltd does not provide any Express Guarantees (as defined in that Act) other than those expressly confirmed by The Virus Centre in writing;
(c) if the goods are acquired by the Customer for business purposes, the Customer agrees that the Consumer Guarantees Act 1993 does not apply;
(d) if the Customer supplies the goods in trade to a person acquiring them for business purposes, it must be a term of the Customer’s contract that the Consumer Guarantees Act 1993 does not apply in respect of the goods; and
(e) if the Customer supplies the goods to any person, the Customer must not give or make any undertaking assertion or representation in relation to the goods without The Virus Centre prior approval in writing, and the Customer must give the person buying the goods such product information relating to the goods as The Virus Centre requires, and the Customer agrees to indemnify The Virus Centre against any liability or cost incurred by The Virus Centre under the Consumer Guarantees Act 1993 as a result of any breach by the Customer of these obligations.
11.2 The following terms apply wherever the Consumer Guarantees Act 1993 does not apply to this contract, or where the following terms are not inconsistent with the Consumer Guarantees Act 1993:
(a) Defective goods or goods which do not comply with the contract may at The Virus Centre discretion be repaired or replaced, or the price refunded.
(b) Any right which the Customer may have to reject non-conforming or defective goods will only be effective if:
(i) the Customer notifies The Virus Centre in writing within thirty days following delivery and The Virus Centre is given the opportunity to inspect the goods; and
(ii) the goods are returned unused, re-saleable and/or in the condition the Customer received them.
(c) The Virus Centre will not repair or replace, or refund the price of any goods for so long as the Customer is in default in relation to any amount owing.
(d) The Virus Centre accepts no liability for any claim by the Customer or any other person, including without limitation any claim relating to or arising from:
(i) Any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law, trade custom or otherwise; or
(ii) Any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by The Virus Centre in writing; or
(iii) Any services forming part of the supply of the goods which have been performed by any third party;
and the Customer agrees to indemnify The Virus Centre against any such claim.
(e) In any event, The Virus Centre liability under any claim shall not exceed the price of the goods.
11.3 Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention.
12. CUSTOMER’S LIABILITY & DEFAULT
12.1 If the Customer shall:
(a) fail to make any payment due under the contract or commit any other breach of any of the Customer’s obligations under the contract; or
(b) suffer execution under any judgment; or
(c) commit an act of bankruptcy; or
(d) make any composition or arrangement with any creditor; or
(e) being a company, pass a resolution for winding up or have a receiver appointed over any of its property or have a winding up petition presented against it,
The Virus Centre (in addition to any other remedies hereby or by statute conferred) may treat the contract as terminated and any part of the purchase price then unpaid, together with any other monies owing hereunder, whether or not due under the terms of the contract shall forthwith become due and payable. Any such termination shall be without prejudice to any claim or right The Virus Centre may otherwise possess.
(f) any account that is in default will be passed on to a debt collection agency and the deal will be liable for all fees incurred associated with debt collection. Not limited to the collection agency but also administrative fees from The Virus Centre.
13. VARIATIONS TO TERMS AND CONDITIONS OF TRADE
13.1 The Virus Centre may from time to time and in its sole discretion amend, add to or delete any of the terms of these terms and conditions of trade with immediate effect by giving notice to the Customer PROVIDED THAT The Virus Centre shall not make any variation to the nature or extent of the Security Interest granted by the Customer in clause 10.1 without the written agreement of the Customer. The Virus Centre may notify the Customer by delivering to the Customer an invoice with these terms and conditions of trade and receipt of the invoice by the Customer will be deemed to be acceptance by the Customer of the terms and conditions of trade.
14. GOVERNING LAW
14.1 These terms of trade are governed by the laws of New Zealand.
14.2 The Virus Centre and the Customer shall submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these terms and conditions of trade.