Terms and Conditions

Terms and Conditions


1.General

1.1Teltrac Communications Limited, which includes its directors, consultants, employees, officers, auditors, advisors, partners, contractors or subcontractors (“Teltrac”) has set out in this document its general terms and conditions of trade (“Terms”).

1.2The Terms are applicable to the supply of any goods (“Goods”) or completion of any services (“Services”) by Teltrac for the Customer unless alternative terms and conditions are accepted in writing by an authorised representative of Teltrac.

1.3In these Terms, “Customer” means any person, company or other entity, which purchases Services and/or Goods from Teltrac and includes any person acting on behalf of the Customer.

2.Offer and Acceptance

2.1Upon receipt by Teltrac of a request in writing from a Customer to provide Services and/or supply Goods, Teltrac may, but is not required to, send a written quotation for the Services and/or Goods to the Customer (“Quotation”). If no Quotation is sent, Teltrac may accept that written request by commencing the provision of the Services or supply of the Goods to the Customer.

2.2A Quotation shall be valid for acceptance by the Customer for a period of 30 days from the date of the Quotation (unless otherwise specified). The Customer may accept the Quotation by signing the “Customer’s Acceptance” section of the Quotation and paying the amount of the deposit (if any) requested by Teltrac, or by issuing Teltrac with an official company purchase order, or by sending Teltrac a written request to proceed on the basis of the Quotation.

2.3The acceptance by Teltrac of a written request from a Customer or the acceptance of the Quotation received by the Customer in the manner specified above shall constitute a binding contract between Teltrac and the Customer and acceptance of these Terms by the Customer. These Terms also expressly apply to any Services and/or Goods supplied or transactions concluded between Teltrac and the Customer in the future.

2.4Teltrac shall be entitled to rely on the accuracy and completeness of any plans, specifications, measurements, quantities and other information provided by the Customer. If there are any discrepancies between this information and any subsequent measurements, quantities or other information, the price shall be adjusted accordingly.

3.Variations

3.1Except as set out in the Quotation or in these Terms, no variation or alteration to the scope of the Services or the Goods shall be binding on the parties unless recorded in writing and signed by the parties.

3.2The Customer expressly acknowledges that variations to the scope of the Services will be charged to the Customer at the schedule of rates which are applicable at the date of invoicing and that these rates may be different from the schedule of rates which were       referred to in any Quotation.

4.Delay or Cancellation of Services or Return of Goods

4.1If the Customer requests that the commencement of the Services be delayed, Teltrac will use reasonable endeavours to accommodate the change to the commencement date but reserves the right to charge an additional fee.

4.2The Customer may only cancel an order for any Services (prior to performance of the Services or after the provision of the Services has commenced) if Teltrac expressly agrees in writing to such cancellation and if the Customer pays all actual and reasonable costs and expenses incurred by Teltrac up to the time of cancellation together with a reasonable administration fee..

4.3A Customer may only cancel an order for Goods prior to delivery of such Goods or return any Goods supplied to the Customer by Teltrac with the express written agreement of Teltrac. In particular, any Goods specifically imported, procured or manufactured by Teltrac for a Customer may only be returned on such terms and conditions as Teltrac may agree (including without limitation payment by the Customer of all actual and reasonable costs and expenses (including any restocking fees) incurred by Teltrac together with a reasonable administration fee).

5.Teltrac obligations

5.1Teltrac will use appropriately skilled, qualified and experienced personnel to perform the Services and exercise that degree of care and skill which would reasonably be expected from an experienced operator in similar circumstances, with reference to New Zealand laws and industry standards and practice.

5.2Teltrac may appoint any subcontractor or supplier to perform any of the Services or supply any of the Goods on Teltrac’s behalf at any time.

6.Customer obligations

6.1The Customer shall promptly provide Teltrac with all reasonable assistance and any information reasonably required by Teltrac relating to the provision of the Services or supply of Goods.

6.2The Customer shall only use the Services and/or Goods for lawful purposes and will not interfere, attempt to interfere or cause or permit interference with the Services or their usual operation.

6.3The Customer may not assign, transfer or otherwise dispose of any of its rights or subcontract any of its obligations under these Terms without the prior written consent of Teltrac.

7.Price

7.1The price of the Services and/or Goods shall be the price stated in the Quotation or the price calculated based on Teltrac’s schedule of rates applicable at the date of invoicing subject to variation in accordance with these Terms.

7.2All prices are based on costs of materials, labour charge-out rates, travel costs, freight, exchange rates and other associated costs at the date of acceptance of these Terms and Teltrac reserves the right to increase the price of the Services and/or Goods on account of any increases in such costs occurring prior to completion of the provision of the Services or supply of the Goods and will notify the Customer accordingly.

7.3Teltrac may require that the Customer pay a reasonable percentage of the price as a deposit prior to delivery of the Goods or performance of the Services by Teltrac.

7.4Goods and Services Tax and any other applicable duties or levies shall be payable by the Customer in addition to the price of the Services and/or Goods.

7.5The Customer shall be responsible for paying any exclusions advised to the Customer or noted on the Quotation.

8.Payment

8.1Invoices for the provision of the Services and/or supply of the Goods shall be issued monthly or when the Services have been completed or at the times set out in the Quotation or otherwise as advised by Teltrac to the Customer. For construction work which is covered by the Construction Contracts Act 2002, Teltrac will issue a payment claim. Payment of any invoice issued by Teltrac shall be made in full by the Customer on or before the twentieth (20th) of the month following the date of the invoice (“Due Date”), unless otherwise agreed in writing by Teltrac. All payments shall be made in New Zealand dollars.

8.2The Customer may not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise) from any money owing to Teltrac, other than prior approved retentions in accordance with the Construction Contracts Act 2002. Receipt of a cheque or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.

8.3Teltrac reserves the right to charge interest on any amount owing after the Due Date at the rate of 18% per annum on that amount accruing daily on a compounding basis from the Due Date until the date when payment is actually made. This is without prejudice or limitation to clause 8.5.

8.4All expenses, disbursements and costs incurred by Teltrac in the enforcement of any rights contained in these Terms shall be paid by the Customer, including any legal costs as between solicitor and Customer or debt collection agency fees.

8.5If the Customer makes any default in payment which continues for a period in excess of 20 working days or Teltrac considers that the Customer has committed or will commit any act of bankruptcy or insolvency or has a receiver appointed or goes into liquidation then Teltrac may cancel any order for Goods and/or suspend the provision of any Services but without prejudice to its rights to payment otherwise in respect of the Goods   and/or Services already delivered.

8.6In the event that the Customer disputes any part of an invoice the Customer shall notify Teltrac of the details of the dispute within seven (7) days of receiving the invoice. The Customer shall pay the amount not in dispute according to the payment terms above. Thereafter the parties agree to enter into good faith negotiations to promptly resolve any dispute between them.

8.7Teltrac may restrict the amount of credit provided to the Customer and may change that limit from time to time and will notify the Customer accordingly.

9.Completion of Services

9.1The Customer acknowledges that any estimates as to the commencement and completion of the Services are approximate only.

10.Risk and Delivery

10.1The Customer shall provide access to the premises of the Customer to enable Teltrac to carry out the delivery of the Services.

10.2The Goods remain at Teltrac’s risk until delivery to the Customer.

10.3Teltrac remains the sole owner of all Goods supplied to the Customer until the Customer has paid for the Goods in full.

10.4The Customer will take every practical step to secure and protect all equipment owned by Teltrac which is in the possession of the Customer at any time and shall be responsible at the Customer’s own cost for all repair or replacement costs of such equipment (except for fair wear and tear) until such time as the equipment is returned to Teltrac.

11.Warranty, Liability and Indemnity

11.1Teltrac will not be liable for any indirect, incidental, special, or consequential damages (including damages for interruption of services, loss of business, loss of revenue, loss of data, or loss or expense which the Customer or any third party incurs), whether in an action in contract, warranty, tort (including negligence) or strict liability. These limitations shall not apply to personal injury or direct physical damage to tangible property deliberately or negligently caused by Teltrac.

11.2To the extent (if any) that Teltrac is held to be liable to the Customer notwithstanding these Terms, Teltrac’s total liability in any 12 month period arising out of or in connection with these Terms and/or the Services will not in any circumstances (whether arising in action in contract, warranty, tort (including negligence) or strict liability) exceed the price of the Services or Goods complained of.

11.3Teltrac shall not have any liability for any claim which is not filed within 12 months after the date of the act or omission on which the claim is based, and no late knowledge extensions or period shall operate to extend this 12 month period.

11.4Where Teltrac is found liable to the Customer and the Customer or a third party has contributed to the loss or damage, Teltrac shall only be liable to the proportional extent of its own contribution.

11.5The Customer may have the benefit of statutory guarantees or implied warranties or conditions under the Consumer Guarantees Act 1993, Fair Trading Act 1986 and other statutes. If the Customer is in trade and is acquiring the Services and/or Goods in trade then the Customer agrees that the provisions of the Consumer Guarantees Act 1993 do not apply.

11.6To the maximum extent permitted by law, the Customer indemnifies Teltrac against all actions, proceedings, losses, damages, liabilities, claims, costs, fees and expenses (including fines, penalties, legal costs (on a solicitor to own client basis), debt collection and other professional costs) on a full indemnity basis that Teltrac suffers or incurs:

(a)as a direct or indirect result of any act, omission or default on the Customer’s part or that of its end users or from any breach or alleged breach of these Terms by the Customer or its end users; or

(b)relating to an action or claim brought by a third party against Teltrac which relates directly or indirectly to the Customer’s use or operation of the Services or Goods.

11.7For the purposes of section 12 of the Contract and Commercial Law Act 2017, the exclusions, limitations and indemnity in these Terms are extended to apply for the benefit of, and to be enforceable by, Teltrac’s directors, agents and employees.

12.Collection and Use of Information

12.1The  Customer  authorises  Teltrac  to  collect, retain  and  use  any information  about  the Customer  for  the purpose of assessing the  Customer’s

creditworthiness and enforcing any rights under these Terms.

12.2The Customer authorises Teltrac to disclose any relevant information to any relevant third party and/or credit agency for the purposes set out above. Where the Customer is a natural person, the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1993.

13.Health and Safety

13.1When Teltrac is required to be present on the Customer’s premises for the purposes of supplying the Services, the Customer shall provide a safe work site, complying at all times with all laws and regulations (including the Health and Safety at Work Act 2015) and keep Teltrac fully apprised at all times of the current Customer health and safety policies and hazards whenever identified.

13.2Teltrac has not and will not during or after the application of these Terms assume any obligation, as your agent or otherwise, which may be imposed on the Customer pursuant to the Health and Safety at Work Act 2015.

14.Personal Property Securities Act 1999 (“PPSA”)

14.1Words or phrases used in this clause have the meaning given to them in the PPSA and section references are to sections of the PPSA.

14.2The Customer grants to Teltrac a security interest in all Goods supplied by Teltrac to the Customer and in all proceeds which the Customer receives from selling Goods supplied by Teltrac.

14.3The Customer acknowledges that Teltrac may register a financing statement in respect of any security interest created by the Terms and the Customer will do all such        other acts and things as may be reasonably required by Teltrac for the purposes of ensuring that at all times Teltrac holds a perfected security interest under the PPSA in respect of any Goods supplied to the Customer.

14.4The Customer waives:

(a)its rights to receive a copy of any verification statement or financing change statement; and

(b)its rights under Part 9 of the PPSA to the extent it applies,

and in particular the Customer and Teltrac contract out of sections 114(1)(a), 116, 117, 119, 120(2), 121, 125, 126, 127, 129, 131 to 134 (inclusive) and 148 of the PPSA.

14.5The security interest created by these Terms becomes enforceable if any of the following events occur:

(a)any of the circumstances described in clause 8.5 above apply;

(b)the Customer sells, parts with possession, leases or disposes of any Goods prior to making full payment;

(c)the Goods are at risk, as that term is defined in the PPSA; or

(d)any other events provided for in the PPSA apply.

14.6In addition to exercising the rights conferred upon Teltrac by Part 9 of the PPSA, the Customer authorises Teltrac or its agent to enter the premises where any unpaid Goods are situated for the purpose of recovery of the Goods. Teltrac will not be responsible for any damage reasonably caused by entry to recover any unpaid Goods.

14.7The Customer will be responsible to Teltrac for any costs or damages incurred in reclaiming and disposing of the unpaid Goods. Such costs including but are not limited to loss in value, cost of repossession, storage, resale and legal costs (on a solicitor and client basis). These costs shall be recoverable as a debt due to Teltrac by the Customer.

15.Miscellaneous

15.1Waiver or failure by either party to exercise in any respect any right provided for in these Terms will not be deemed to be a waiver of any further right under these Terms.

15.2If any provision of the Terms shall be found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of the Terms shall continue in full force and effect.

15.3Neither party shall be liable for any failure or delay in complying with any obligation imposed on that party under these Terms if the failure or delay arises directly or indirectly from an event or circumstance reasonably unforeseeable or beyond that party’s control and not arising from the fault or insolvency of that party.

15.4Any dispute or difference between Teltrac and the Customer regarding these Terms will be negotiated between the parties through good faith negotiations.

16.Governing Law

16.1The Terms shall be governed by and construed in accordance with the laws of New Zealand and each party submits to the exclusive jurisdiction of courts of New Zealand.

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