Terms of Trade

  1. Definitions
    1. “TE” shall mean Treshna Enterprises Ltd, its successors and assigns or any person acting on behalf of and with the authority of Treshna Enterprises Ltd.
    2. “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by TE to the Client.
    3. “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
    4. “Goods” shall mean all Goods (including software) supplied by TE to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by TE to the Client.
    5. “Services” shall mean all services supplied by TE to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
    6. “Price” shall mean the price payable for the Goods as agreed between TE and the Client in accordance with clause 5 of this contract.
  2. Acceptance
    1. Any instructions received by TE from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by TE shall constitute acceptance of the terms and conditions contained herein.
    2. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
    3. Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of TE.
    4. The Client shall give TE not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by TE as a result of the Client’s failure to comply with this clause.
    5. Goods are supplied by TE only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
    6. The Client shall as soon as practicable make available to TE all information, documents, software, hardware, and other particulars required by TE for the provision of Services.
    7. The Client acknowledges that any advice or recommendations are provided by TE on the basis of TE’s industry knowledge and experience only and as such shall not be deemed to be specialist advice.
    8. The Client acknowledges that it is their responsibility to ensure that the specifications provided to TE (in writing) for the supply of Services are in sufficient detail to satisfy TE’s requirements of interpretation and understanding. TE shall not accept any liability for the supply of Services contrary to the Client’s intention due to insufficient or inadequate provision of detailed specifications by the Client.
  3. Authorised Representatives
    1. Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to TE as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any materials or Services on the Client’s behalf and/or to request any variation to the works on the Client’s behalf (such authority to continue until all requested works have been completed or the Client otherwise notifies TE in writing that said person is no longer the Client’s duly authorised representative).
    2. In the event that the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise TE in writing of the parameters of the limited authority granted to their representative.
    3. The Client specifically acknowledges and accepts that they will be solely liable to TE for all additional costs incurred by TE (including TE’s profit margin) in providing any works, materials, services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).
  4. Electronic Transactions Act 2002
    1. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
  5. Price And Payment
    1. At TE’s sole discretion the Price shall be either:
      1. as indicated on invoices provided by TE to the Client in respect of Goods supplied; or
      2. TE’s current price at the date of delivery of the Goods and/or services according to TE’s current Price list or as shown on any other documentation; or
      3. TE’s estimated Price (subject to clause 5) and based on an approximation of the team members required and the number of hours required to complete the task. Extra hours will be charged at TE’s published hourly rates and variances in the estimated Price of more than 10% will be subject to Client approval before proceeding with the Services; or
      4. TE’s quoted Price (subject to clause 5.2) which shall be binding upon TE provided that the Client shall accept TE’s quotation in writing within thirty (30) days.
    2. TE reserves the right to change the Price:
      1. if a variation to the Goods which are to be supplied is requested; or
      2. if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
      3. where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, application, software or hardware incompatibility) which are only discovered on commencement of the Services; or
      4. in the event of increases to TE in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond TE’s control.
    3. At TE’s sole discretion a non-refundable deposit may be required.
    4. At TE’s sole discretion:
      1. payment shall be due on delivery of the Goods; or
      2. payment for approved Clients shall be made by instalments in accordance with TE’s payment schedule; or
      3. payment for approved Clients shall be due twenty (20) days following the end of the month in which an invoice is emailed to the Client’s email address or address for notices.
    5. Payment will be made by bank cheque, or by credit card, or by direct credit, or by credit card, or by PayPal, or by any other method as agreed to between the Client and TE.
    6. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
  6. Delivery of Goods
    1. At TE’s sole discretion delivery of the Goods shall take place when:
      1. the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by TE or TE’s nominated carrier); or
      2. the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
    2. At TE’s sole discretion the costs of delivery are included in the Price.
    3. Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
    4. TE may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
    5. The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
      1. such discrepancy in quantity shall not exceed 5%; and
      2. the Price shall be adjusted pro rata to the discrepancy.
    6. The failure of TE to deliver shall not entitle either party to treat this contract as repudiated.
    7. TE shall not be liable for any loss or damage whatsoever due to failure by TE to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of TE.
    8. TE will make all reasonable efforts to ensure that the Client receives continual and uninterrupted services during the term of this agreement. In no event though, shall TE be liable to the Client for damages resulting from, or in relation to, any failure or delay of TE to provide services under this agreement. Such a failure or delay shall not constitute a default under this agreement.
  7. Risk
    1. If TE retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
    2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, TE is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by TE is sufficient evidence of TE’s rights to receive the insurance proceeds without the need for any person dealing with TE to make further enquiries.
    3. TE shall not be held liable for any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from the Services provided by TE. It is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to TE providing the Services. The Client accepts full responsibility for the Client’s software and data and TE is not required to advise or remind the Client of appropriate backup procedures.
    4. All third-party software is provided at the Client’s own risk and is not in any way warranted by TE nor shall TE be in any way responsible for the implementation or effects of any “patches”, “updates”, or “fixes” offered by the manufacturer of the software.
    5. Where the Client is to supply TE with any design specifications (including, but not limited to CAD drawings) the Client shall be responsible for providing accurate data. TE shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Client.
    6. The Client accepts that where TE recommended hardware installation is not implemented or is installed by a third party introduced by the Client, then the Client shall indemnify TE against all liability (including, but not limited to, any costs, damages or losses) that may occur as a result.
  8. Title
    1. TE and Client agree that ownership of the Goods shall not pass until:
      1. the Client has paid TE all amounts owing for the particular Goods; and
      2. the Client has met all other obligations due by the Client to TE in respect of all contracts between TE and the Client.
    2. Receipt by TE of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then TE’s ownership or rights in respect of the Goods shall continue.
    3. It is further agreed that:
      1. where practicable the Goods shall be kept separate and identifiable until TE shall have received payment and all other obligations of the Client are met; and
      2. until such time as ownership of the Goods shall pass from TE to the Client TE may give notice in writing to the Client to return the Goods or any of them to TE. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
      3. the Client is only a bailee of the Goods and until such time as TE has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to TE for the Goods, on trust for TE; and
      4. until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that TE will be the owner of the end products; and
      5. if the Client fails to return the Goods to TE then TE or TE’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods, and TE will not be liable for any reasonable loss or damage suffered as a result of any action by TE under this clause.
  9. Personal Property Securities Act 1999 (“PPSA”)
    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
      1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      2. a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to TE for Services – that have previously been supplied and that will be supplied in the future by TE to the Client.
    2. The Client undertakes to:
      1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TE may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      2. indemnify, and upon demand reimburse, TE for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
      3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of TE; and
      4. immediately advise TE of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
    3. TE and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    5. Unless otherwise agreed to in writing by TE, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    6. The Client shall unconditionally ratify any actions taken by TE under clauses 9.1 to 9.5.
  10. Client’s Disclaimer
    1. The Client hereby disclaims any right to rescind, or cancel any contract with TE or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by TE and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
  11. Defects
    1. The Client shall inspect the Goods immediately on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify TE of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford TE an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which TE has agreed in writing that the Client is entitled to reject, TE’s liability is limited to either (at TE’s discretion) replacing the Goods, or repairing the Goods or provision of a full refund.
    2. Goods will not be accepted for return other than in accordance with 11.1 above.
  12. Warranties
    1. TE and the Client warrant that to the best of their knowledge that all Services that are to be undertaken by TE will not breach any agreement or third party interest in respect of the systems or equipment being serviced.
    2. The Client acknowledges that in the event of any issues or problems with third party software functionality then they shall be required to resolve those issues directly with the third party.
    3. Subject to the conditions of warranty set out in Clause 12.4 TE warrants that if any defect in any workmanship of TE becomes apparent and is reported to TE within twelve (12) months of the date of delivery (time being of the essence) applicable to hardware and thirty (30) days only in relation to software, then TE will either (at TE’s sole discretion) replace or remedy the workmanship.
    4. The conditions applicable to the warranty given by Clause 12.3 are:
      1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
        1. failure on the part of the Client to properly maintain any Goods; or
        2. failure on the part of the Client to follow any instructions or guidelines provided by TE; or
        3. any use of any Goods otherwise than for any application specified on a quote or order form; or
        4. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
        5. fair wear and tear, any accident or act of God.
      2. the warranty shall cease and TE shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without TE’s consent.
      3. in respect of all claims TE shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
    5. For Goods not manufactured by TE, the warranty shall be the current warranty provided by the manufacturer of the Goods. TE shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
    6. To the extent permitted by statute, no warranty is given by TE as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. TE shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
  13. Consumer Guarantees Act 1993
    1. If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by TE to the Client.
  14. Intellectual Property
    1. Where TE has designed, drawn or created Goods for the Client, then the copyright in those designs and drawings and Goods shall remain vested in TE, and shall only be used by the Client at TE’s discretion.
    2. The Client warrants that all designs or instructions provided to TE will not cause TE to infringe any patent, registered design, or trademark in the execution of the Client’s order and the Client agrees to indemnify TE against any action taken by a third party against TE in respect of any such infringement.
    3. Where TE has designed and/or provided custom applications, computer software and documentation, TE retains ownership of the computer software and documentation, but grants the Client a non-exclusive and non-transferable licence for its use (solely in relation to the operation of the Client’s own business). The Client agrees to use any third-party software supplied by TE, and identified as such, strictly in compliance with the terms of the licence under which it is supplied.
    4. The Client further agrees that they shall not:
      1. use in any way, or rely on the software for any purpose other than what it was designed or is suitable for;
      2. combine the software with any other software;
      3. copy, reproduce, translate, adapt, vary, merge, modify, or create any derivative work based on the software;
      4. reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the software, or assist another party to do the same;
      5. sell, market, network, transfer, lease, licence, sub-licence, rent, lend, or otherwise distribute, the software in any way whatsoever;
      6. use the software to commit a crime (including, but not limited to, sending spam) and the Client agrees to indemnify TE against any action taken by a third party against TE in respect of any such infringement.
    5. If during the course of providing the Services, TE develops, discovers, or puts into operation a new concept, product or process which is capable of being patented, then such concept, product or process shall be and remain the property of TE and the Client shall not use or supply the same in any way whatsoever without first obtaining the written consent of TE.
    6. Where TE has designed Goods for the Client to use, then the Client undertakes to acknowledge TE’s intellectual property in those Goods in the event that images of those Goods are utilised in advertising or marketing material by the Client. Further the Client agrees that TE itself may utilise images of any Goods so designed for the purposes of advertising, marketing, or entry into any competition.
  15. Confidentiality
    1. Both parties agree that, unless they have the prior written consent of the other, they will not use or disclose to any third party (other than for the purpose of performing this agreement) the terms and conditions of this agreement or any information confidential to the other party. The obligations of this clause 15 shall survive termination or cancellation of this agreement.
    2. The Client agrees to protect all authorisation details, including but not limited to usernames and passwords and agrees that those details shall not be written or stored in any manner which could result in their unauthorised disclosure.
    3. In the event that TE requests the Client to change any password or identifier as part of its Services, the Client acknowledges that TE recommends that the Client not use commonly known details such as birthdays and or names.
    4. The Client accepts that TE reserves the right to store data onsite where necessary.
  16. Default & Consequences of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at TE’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes TE any money the Client shall indemnify TE from and against all costs and disbursements incurred by TE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TE’s collection agency costs, and bank dishonour fees).
    3. The Client shall notify TE of any disputes relating to invoicing in writing within thirty (30) days from the date of the invoice.
    4. Further to any other rights or remedies TE may have under this contract, if a Client has made payment to TE by credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by TE under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
    5. Without prejudice to any other remedies TE may have, if at any time the Client is in breach of any obligation (including those relating to payment) TE may suspend or terminate the supply of Goods and/or Services to the Client and any of its other obligations under the terms and conditions on unpaid accounts that have been outstanding for a period of sixty (60) days from the date of the original invoice. TE will not be liable to the Client for any loss or damage the Client suffers because TE has exercised its rights under this clause.
    6. Without prejudice to TE’s other remedies at law TE shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TE shall, whether or not due for payment, become immediately payable in the event that:
      1. any money payable to TE becomes overdue, or in TE’s opinion the Client will be unable to meet its payments as they fall due; or
      2. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  17. Security And Charge
    1. Despite anything to the contrary contained herein or any other rights which TE may have howsoever:
      1. where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to TE or TE’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that TE (or TE’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
      2. should TE elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify TE from and against all TE’s costs and disbursements including legal costs on a solicitor and own client basis.
      3. the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint TE or TE’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 17.1.
  18. Cancellation
    1. TE may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice TE shall repay to the Client any sums paid in respect of the Price. TE shall not be liable for any loss or damage whatsoever arising from such cancellation.
    2. In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by TE (including, but not limited to, any loss of profits) up to the time of cancellation.
    3. Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
  19. Privacy Act 1993
    1. The Client authorises TE or TE’s agent to:
      1. access, collect, retain and use any information about the Client;
        1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
        2. for the purpose of marketing products and services to the Client.
      2. disclose information about the Client, whether collected by TE from the Client directly or obtained by TE from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
    2. Where the Client is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
    3. The Client shall have the right to request TE for a copy of the information about the Client retained by TE and the right to request TE to correct any incorrect information about the Client held by TE.
  20. Unpaid Seller’s Rights
    1. Where the Client has left any item with TE for repair, modification, exchange or for TE to perform any other Service in relation to the item and TE has not received or been tendered the whole of the Price, or the payment has been dishonoured, TE shall have:
      1. a lien on the item;
      2. the right to retain the item for the Price while TE is in possession of the item;
      3. a right to sell the item.
    2. The lien of TE shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
  21. Disputes And Remedies
    1. The parties agree to use their best efforts to resolve any dispute which may arise under this agreement through good faith negotiations. No party shall commence any arbitration or litigation in relation to this agreement unless it has first invited the chief executive of the other party to meet with its own chief executive for the purpose of endeavouring to resolve the dispute on mutually acceptable terms.
    2. Any dispute arising under this agreement which cannot be settled by negotiation between the parties or their respective representatives shall be submitted to mediation before commencing any litigation. Either party may initiate mediation by giving written notice to the other party.
    3. If the parties cannot agree on a mediator within two (2) working days of the notice, then the mediator will be selected by the President for the time being of LEADR (Lawyers Engaged in Alternative Dispute Resolution) or its successor.
    4. The parties shall continue to perform their obligations under the agreement as far as possible as if no dispute had arisen pending the final settlement of any matter referred to mediation.
    5. Nothing in this clause shall preclude either party from taking immediate steps to seek urgent equitable relief before a New Zealand Court.
  22. General
    1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
    3. TE shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by TE of these terms and conditions.
    4. In the event of any breach of this contract by TE the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
    5. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by TE nor to withhold payment of any invoice because part of that invoice is in dispute.
    6. TE may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
    7. TE reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which TE notifies the Client of such change.
    8. The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
    9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
    10. The failure by TE to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TE’s right to subsequently enforce that provision.