Terms of Trade for Netcare Limited

The terms of trade set out below govern all of the supplies of goods and services from Netcare Limited (“NCL”, “we”, “us”) to the Customer (“you”). They will replace any terms and conditions contained in any document used by you and purporting to have contractual effect, and your acceptance of any goods or services from NCL indicates your acceptance of these terms of trade. These terms of trade are effective from 1st of March, 2020 and replace all earlier terms of trade between you and NCL.

1. Delivery and risk

1.1 You are responsible for insurance and risk in the goods from the earlier of the time they are received by a carrier for delivery to you, or the time they are received by you or your agent.

1.2 You agree to pay all delivery costs. If we deliver any order in parts, then each delivery is a separate contract.

1.3 You do not have the right to possess goods until they are delivered to you or collected by you. Where you ask us to deliver goods or software directly to another person, that person takes possession of the goods for you as your agent.

1.4 All claims for shortage or delivery damage must be made to the carrier and to NCL within 7 business days of the date of delivery.

1.5 We will make every effort to ensure delivery of goods, or performance of services, is on time but will not be liable to you for any loss or damage arising in any way from any delay in delivery or performance.

2. Quotations, Orders and Prices

2.1 All prices are subject to alteration without notice.

2.2 Quoted prices are the New Zealand dollar price on date of quotation only, and may be subject to change. Where prices are quoted in overseas currency, you are responsible for any currency fluctuations.

2.3 Unless otherwise stated in writing, all electronic goods (hardware, consumables and software) will be box shipped and it is your responsibility to assemble, configure and install it.

2.4 You agree to pay goods and services tax and any other government duties, levies or taxes in respect of the goods or services.

2.5 All installation and service work is charged out at NCL’s rates applicable at the date the service is supplied.

2.6 Orders may be cancelled only if NCL agrees in writing to the cancellation and the order has not been processed. NCL may charge you a cancellation fee.

3. Payments and property

3.1 Unless we have agreed in writing to extend credit to you in another manner, you must pay for all goods in full before delivery or collection, or at NCL’s request, set up an irrevocable letter of credit in favour of NCL with a bank approved by NCL’s bankers.

3.2 Where we have agreed to extend credit to you, you must pay in full, without deduction or set-off, by the 20th day of the month following the date of invoice. Your payment is made only when funds have fully cleared through the banking system into our bank account.

3.3 If you have not paid in full by the due date, we may charge you interest compounding monthly on the unpaid overdue balance at the rate of 5% per annum above the current overdraft rate charged by our bankers, and we may charge costs (including collection costs and legal costs on a solicitor-client basis) and suspend delivery of further goods or performance of further services until the account is paid.

3.4 Payments which you make to us will be applied first to any amount owing in respect of service work, then to payment for any goods which have been purchased as inventory and which have been sold by you, then to payment for goods supplied by us which have not been sold by you.

3.5 Property and ownership in goods or software licences, whether in their original form or incorporated in or attached to another product, will not pass to you but will remain with NCL until NCL receives payment in full of the purchase price of the goods or software licences and all other amounts that you owe to NCL for any reason.

3.6 Until property passes to you, you shall hold any goods or software in trust for NCL and/or any software licensor, and store and sell them in a manner to enable them to be identified and cross-referenced to particular invoices.

3.7 Unless otherwise notified in writing, where goods are sold to you as inventory or consignment stock for re-supply, you are authorised to sell the goods in the ordinary course of your business, but you must keep the proceeds of any goods sold in a separate account in trust for NCL.

3.8 You must not resell or part with possession of any machinery, equipment or software that we supply for your use before you have paid for it in full, unless we have given you written consent.

3.9 Notwithstanding clauses 3.1 and 3.2 above, all payments shall immediately become due to NCL if we reasonably believe that the information which you have given us in your application for credit is not correct or no longer correct, and you have failed to give us correct information within 5 days of our request, if, without our consent you sell or otherwise dispose of any equipment, machinery or software which have not been paid for, if you become insolvent, commit any act of bankruptcy, or if a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking, if you fail to comply with any of the provisions of clause 4, or if you make or attempt to make an arrangement or composition with creditors.

3.10 Where NCL reasonably believes that any collateral is at risk or that you are or will be in breach of any part of clauses 3 or 4 of this agreement, NCL or its agent may enter your premises without further notice to you or any other person, to remove any goods which are the property of NCL, including goods or software which are installed in or affixed to other goods, and you indemnify NCL against all costs and claims in respect of its exercise of rights under this clause 3.

4. Security interests

4.1 If we extend credit to you or if you owe us money for any reason, you agree to grant us a security interest in the property that we have supplied to you. You agree that you will do all acts necessary and provide us on request all information we require to register a financing statement over the goods and their proceeds, and that you will advise us immediately in writing of any changes to that information. You waive all rights to receive a copy of any verification statement of a financing statement. The goods and services subject to the security interest will be described on our invoices.

4.2 You agree that you will supply NCL, within 2 business days of its written request, with copies of all security interests registered over your personal property, and you authorise NCL as your agent to request information from any secured party relating to any security interest which is held in any personal property which is or has been in your possession or control.

4.3 You agree that NCL may require you to pay all reasonable costs, including legal costs on a solicitor client basis, associated with the discharge or amendment of any financing statement registered by NCL, whether or not the change was initiated by you.

4.4 If we repossess goods under this agreement, we may retain those goods or dispose of them without notice or statement of account to you or any other person, and, after deducting reasonable costs of sale, we may credit any surplus by way of set-off against any sums owing to us. We will not be obliged to reinstate this agreement or re-supply any repossessed inventory or provide you with a statement of account.

4.5 You authorise us to search the Personal Property Securities Register at any time for any information about you or (if you are a company) your parent or associated companies.

5. NCL Warranties

5.1 Where the New Zealand Consumer Guarantees Act applies to the supply of goods or services under these terms of trade, you may have additional rights under that Act.

5.2 NCL warrants a performance standard to use reasonable care and skill in the performance of Technology Products or its Technology Services.

5.3 Goods and software are subject to the manufacturers’ warranties only. NCL will pass on the benefit of those warranties to you, without itself being directly liable to you under any warranty.

5.4 Where goods are subject to a return to base warranty, you are responsible for returning them to the manufacturer or to NCL, and you may be responsible for additional costs including (but not limited to) freight. Where you require NCL to carry out the warranty service, you agree to pay NCL’s service and call-out charges.

5.5 Any warranty may be voided by damage to or misuse of equipment, problems caused by the use or misuse of software, negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorised repairs, modifications or the use of hardware, software or consumables not supplied by NCL.

5.6 You will not be entitled to the benefit of any warranty if any sum that you owe NCL for any reason is overdue.

5.7 Where the goods or services that you acquire from NCL are not of a kind ordinarily acquired for personal household or domestic use or consumption, or where you acquire, or hold yourself out as acquiring, the goods or services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or the United Nations Convention on Contracts for the International Sale of Goods made at Vienna on 11 April 1980, or implied by common law will not apply and are excluded from these terms of trade.

6. Customer Warranties

6.1 If you acquire any goods or services from NCL for re-supply as, or incorporate or attach any goods or services acquired from NCL into, goods or services ordinarily acquired for personal household or domestic use or consumption (“Consumer Products”) you warrant that:

(a) if you supply the Consumer Products directly to an end user/consumer you will do so using terms and conditions of supply which exclude liability for any claims under the Consumer Guarantees Act 1993; and

(b) if your customer acquires the goods for re-supply, your customer and each person in the distribution chain will exclude liability in its contract for supply for any claims under the Consumer Guarantees Act 1993,

6.2 But in each case only where the end user/consumer acquires the Consumer Products for business purposes.

6.3 If you acquire any goods for re-supply outside New Zealand, you warrant:

(a) That to the maximum extent allowable by law, you have excluded NCL’s liability to any other person, and;

(b) You have taken out public liability insurance with an insurer acceptable to NCL’s insurer, and you will supply NCL or its insurer with proof of that insurance on demand.

6.4 You agree to indemnify NCL against any failure by you, your customers or any person in your distribution chain to properly contract out of liability to business end users/consumers under the Consumer Guarantees Act 1993.

7. Limitation of liability

7.1 NCL will not be responsible for any loss or costs incurred through your failure to back up data.

7.2 NCL will not be liable for any losses of any kind or any delay in supplying goods or services which are caused in whole or in part by force majeure including (but not limited to) any act of God, natural disaster, flood or earthquake, strike, lockout, fire, major power failure, telecommunications or satellite systems failure, mechanical failure, war, civil commotion, network service failure, inability to obtain products or supplies including the imposition of any export or import bans, or any other cause beyond its reasonable control. NCL shall not be required to settle a strike or lockout or other industrial disturbance against its wishes in order to benefit from this clause.

7.3 Subject to clause 5.1, NCL’s liability shall be limited to the value of any goods, software or services supplied, and none of NCL, its employees, contractors and agents, any manufacturer(s) or developer of the goods, software or any of their materials or components or any suppliers of services, will be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This limitation of liability includes, but is not limited to, costs (including costs of returning goods to NCL or to any manufacturer), loss of data, consequential loss, loss of contracts, loss of profits and damage caused by or arising from delays in manufacturing or delivery, faulty or delayed installation, unreasonable use, negligence (including a failure to do something which should have been done or to prevent something from happening), faulty specifications and design, and faulty materials or components of the goods, special or indirect damages and liquidated damages.

8. Intellectual property rights

8.1 Neither NCL nor its suppliers transfers any right, title or interest in any copyright, trademarks, or other intellectual property rights relating to any of the goods or software to you.

8.2 You will not cause or permit anything which may interfere with, damage or endanger the trade mark(s) or the intellectual property of NCL or its supplies, or assist or allow others to do so.

8.3 You undertake to advise NCL immediately when it becomes aware of any unauthorised use or attempted use by any person of the trademarks or intellectual property rights of NCL or its suppliers.

8.4 Where NCL produces or adapts software for you or designs equipment for you, you agree that NCL will have copyright in that new software or adaptation.

8.5 Where you require NCL to modify or adapt software, you warrant that NCL has the right to make that modification or adaptation, and you indemnify NCL against all costs and losses of any kind, including claims from third parties, which arise as a result of NCL carrying out your requests.

9. Personal Information

9.1 NCL may use any personal information that you supply in accordance with the Privacy Act 1993 for credit, administration, service and marketing purposes. You have the right of access to, and to ask for correction of, your personal information.

9.2 You authorise any person or company to provide NCL with any information it may require in response to your application for credit and/or other enquiries, and you authorise NCL to search the Personal Property Securities Register for any information about you (or, in the case of a company) your parent or associated companies.

10. General Conditions

10.1 NCL reserves the right to change these terms of trade from time to time by notice to you in writing.

10.2 If NCL fails to enforce any terms or to exercise its rights under these terms of trade at any time, NCL has not waived those rights.

10.3 If any provision of these terms of trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these terms of trade.

10.4 Any agreement between you and NCL is governed by the laws of New Zealand. You agree that any dispute is subject to the exclusive jurisdiction of the New Zealand courts although NCL reserves the right to commence any proceedings against you in any other court.

11. Data Backup & Anti-virus Updates

11.1 I acknowledge that NCL cannot keep my data secure under all circumstances, that I am responsible for data backup and Anti-Virus software updates, and that I cannot make a claim based on loss of data against NCL, its employees, agents or sub-contractors if I have failed to back up my data or have not kept my Anti-Virus software up to date.

12. Cyber Liability

12.1 You acknowledge and agree that neither NCL, nor any of its employees, officers, directors, agents or other service providers has or will have any liability to you whatsoever (whether based in contract, tort, strict liability or otherwise) for any direct, indirect, incidental, consequential, or special damages that arise out of or are connected in any way with your use of the product.

13. Personal Guarantee of Company Director or Trustee

13.1 If you are a Company or a Trust, the Director(s) or Trustee(s) jointly and severally personally guarantee and undertake as principle debtors to NCL the payment of any and all other monies now and hereafter owed by you to the Company. Any personal guarantee made by any other party shall not exclude you in anyway whatsoever from the liabilities and obligations contained in this contract. You and the guarantors shall be jointly and severally liable under the terms and conditions of this contract.

14. Indemnity

14.1 You shall indemnify NCL against all claims in respect of any loss or damage including consequential loss sustained by a Third Party howsoever caused after the receipt of goods or services by you.

15. Confidentiality

15.1 NCL and you agree jointly not to disclose to any person any information relating to the services, (including the user ID number(s), password(s) and PIN) software or equipment which are/is acquired from our Third Party supplier. This restriction will not apply to any information which is or becomes publically available otherwise than through a breach of your obligation.

16. Term, Notice and Termination

16.1 Agreement Term

Where goods or services are supplied under a service agreement, managed services agreement, service schedule, or similar arrangement with an agreed minimum term (“Agreement”), that Agreement shall continue for the minimum term specified, and thereafter unless or until terminated in accordance with this clause.

16.2 Termination for Convenience (90‑Day Notice)

Subject to clause 16.3, either party may terminate an ongoing Agreement for convenience by giving the other party not less than ninety (90) days’ written notice.

Termination under this clause shall take effect at the end of the notice period and shall not affect:

any rights or obligations accrued prior to termination; or

any clause which by its nature survives termination, including payment obligations, limitation of liability, indemnities, security interests, and confidentiality.

16.3 Early or Premature Termination by Customer

Where you terminate an Agreement before the expiry of the agreed minimum term, or terminate otherwise than in accordance with clause 16.2, you agree that:

(a) all Monthly Recurring Charges (MRCs), licence fees, minimum commitments, and other recurring charges that would have been payable for the remainder of the minimum term shall immediately become due and payable in full;

(b) such amounts represent a genuine pre‑estimate of loss incurred by NCL as a result of early termination, including (without limitation) unrecovered onboarding costs, discounted pricing, committed third‑party charges, and resource allocation, and are not a penalty;

(c) NCL may, at its sole discretion, agree in writing to accept a commercial settlement of the remaining amounts, but is under no obligation to do so; and

(d) all outstanding invoices and early termination amounts are payable immediately, notwithstanding termination or cessation of services.

For the avoidance of doubt, termination of an Agreement does not relieve you of any payment obligations unless expressly agreed in writing by NCL.

16.4 Termination for Breach or Insolvency

NCL may terminate an Agreement immediately, by written notice and without liability, where:

you commit a material breach of these terms and fail to remedy that breach within a reasonable time after written notice;

any event described in clause 3.9 occurs; or

NCL reasonably believes its continued provision of services exposes it to legal, financial, or security risk.

In such circumstances, all amounts payable for the remainder of the minimum term shall become immediately due and payable.

16.5 Effect of Termination

Upon termination or expiry of an Agreement:

you shall immediately pay all amounts owing to NCL;

NCL may cease access to systems, services, and licences;

NCL is under no obligation to retain data beyond agreed offboarding periods; and

any transition assistance or offboarding services will be charged at NCL’s then‑current professional services rates.

17. Severability

16.1 If any provision of these terms of trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the intention of the parties as shown by these terms of trade.

18. Operating System & Third-Party Application Patching

17.1 For clients whose monitoring and management services are provided by Netcare, the installation of Windows and third-party patches will be undertaken by Netcare. Notwithstanding the foregoing, in the event that a device is unavailable for patching for any reason such as being powered off or disconnected from the network, Netcare shall make reasonable efforts to notify the client of the necessity to power on or reconnect the device to facilitate the patching process. Should the client fail to ensure that the workstation is powered on and available for patching, Netcare shall not be held liable for any security incidents arising from the unpatched status of the said device.

/Ends.