Acclaim Group Limited Terms of Trade
The terms of trade set out below govern all of the supplies of Products and services from Acclaim Group Limited (“Acclaim Group Limited”, “we”, “us”) to the customer (“you”, “the Client”). They will replace all earlier Acclaim Group Limited Standard Terms of Trade and any conditions contained in any document used by you and purporting to have contractual effect. Your acceptance of any Products or services from Acclaim Group Limited indicates your acceptance of these terms of trade.
1. In these conditions, “Software” includes all relevant documentation, manuals, printed and written matter; “Supplier” means Acclaim Group Limited’s suppliers; “Products” means computer hardware, peripherals, accessories, Software and other goods of any kind which are supplied by Acclaim Group Limited to you; “Website” means any internet website owned and operated by Acclaim Group Limited; “Services” means any support or services supplied on an hourly charge out basis including, but not limited to, Software Development, Network Support, Accounting system support, Training and Installation with regard to both hardware and software and general systems maintenance.
2. Price and Orders
2.1 Prices may be altered without notice.
2.2 Acclaim Group Limited reserves the right to refuse to accept any order or any part of an order, and to deliver goods by installments, in which case each installment will comprise a separate contract and shall be paid for as if it were a separate order.
3. Risk and delivery
3.1 You are responsible for insurance and risk in the Products from the time they are received by a carrier for delivery to you or collected by you or your agent.
3.2 You agree to pay all delivery costs.
3.3 All claims for shortage or damage during delivery must be made to the carrier within 7 days of the date of delivery. Where goods appear to be damaged or missing you must contact the carrier and us immediately.
3.4 We will make every effort to ensure delivery of Products, 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. Delay in delivery or performance does not entitle you to cancel any order.
3.5 Unless otherwise stated in writing at time of quotation, all Products will be box shipped and it is your responsibility to assemble, configure and install them.
3.6 Where you ask us to deliver goods directly to another person, that person takes possession of the goods for you as your agent, but you are still directly responsible to us under these terms of trade.
4.1 Unless we have agreed to extend credit to you, you must pay in cash or by Business or Bank cheque before supply.
4.2 Software development is subject to a 20% payment of the quotation amount (including GST) at the time of quotation acceptance, subsequent payments upon invoice, or within 7 days of invoice for progressive labour charged, with the final amount due upon supply of the developed application. Any alterations to the application subsequent to the original quotation may be subject to a separate or replacement quotation.
4.3 Where we have agreed in writing to extend credit to you, you must pay in full within 7 days of supply, or (only if we have agreed in writing) by the 20th of the month following the date of an invoice. Your payment is made only when funds have fully cleared through the banking system into our bank account. All hardware and software (unless a development agreement is in place, as per clause 4.2) is supplied on a C.O.D basis.
4.4 We have sole discretion to determine the amount of credit we will extend to you at any time.
4.5 You agree to pay for the Products or Services in full without deduction or setoff and to pay goods and services tax and any other government duties, levies or taxes in respect of the Products.
4.6 If payment is not made in full by the due date, we are entitled to charge you interest on the unpaid overdue balance at the rate of 5% per annum above the current overdraft rate charged by our bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by us, and we may charge you costs (including collection costs and legal costs on a solicitor- client basis) and suspend delivery of further Products or performance of further Services until the account is paid.
4.7 Notwithstanding clauses 4.2 and 4.3 above, all payments shall immediately become due to us if you refuse to accept delivery of any Products, if we reasonably believe that the information which you have given us in your application for credit is incorrect or no longer correct and you have failed to give us correct information satisfactory to us within 5 days of our request, if you sell or otherwise dispose of any goods which have not been paid for without our consent, if you become insolvent, commit any act of bankruptcy, if a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking, if you make or attempt to make an arrangement or composition with creditors, or if you fail to comply with any of the provisions of clause 6.
5.1 With the exception of Software which is subject to licence (where it is not intended that title should ever pass to you, but shall remain in Acclaim Group Limited as principal or as agent for the software licensor), property and ownership in Products, whether in their original form or incorporated in or attached to another product will not pass to you but will remain with us until we receive payment in full of the purchase price of the Products and all other amounts that you owe to us for any reason.
5.2 Until property passes to you, you shall hold any Products in trust as fiduciary bailee for us and/or the software licensor, and store them in a manner to enable them to be identified and cross referenced to particular invoices.
5.3 Unless otherwise notified in writing, you are authorized to sell the Products in the ordinary course of your business, but you must keep the proceeds of any Products sold in a separate account in trust for Acclaim Group Limited and/or the relevant software licensor.
5.4 Where you acquire any Products for your own use as equipment, you must tell us immediately in writing and you must not resell or part with possession of those Products, before you have paid for them in full, unless we have given you written consent.
5.5 Where Acclaim Group Limited reasonably believes you are or will be in breach of any part of clauses 4, 5 or 6 of these terms of trade, Acclaim Group Limited or its agent may without notice enter any premises under your control to remove any Products which are the property of Acclaim Group Limited, whether or not those Products are installed in or attached to any other goods, using such force as is necessary, and without prejudice to any other of Acclaim Group Limited’s rights. You indemnify Acclaim Group Limited against all costs and claims in respect of its exercise of rights under this clause 5.
6. Security interests
6.1 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 Products or 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.
6.2 You agree that you will supply us, within 2 business days of our written request, with copies of all security interests registered over your personal property, and you authorize us 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.
6.3 You agree that we 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 us, whether or not the change was initiated by you.
6.4 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 setoff against any sums owing to us. We will not be obliged to re-supply any repossessed inventory.
6.5 You authorize 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.
7.1 You acknowledge and agree that returns shall only be accepted by us in accordance with our returns policy as notified to you from time to time, and that you may receive a credit for goods returned only if we have consented in writing.
8.1 Goods are subject to the manufacturers’ warranties only. We will pass on the benefit of those warranties to you, without being directly liable to you under any warranty.
8.2 Where goods are subject to a return to base warranty, you are responsible for returning them to us or the manufacturer (as provided by the warranty) and you may be responsible for additional costs including (but not limited to) freight.
8.3 Any warranty may be voided by damage to or misuse of the system, problems caused by the use or misuse of software, negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorized repairs, modifications or the addition of incompatible hardware.
9. Obligations to suppliers
9.1 We may impose certain conditions on you from time to time where our suppliers require us to do so.
10. Compliance with applicable US Laws
10.1 You warrant that all technology, technical information and technical data received directly or indirectly by you from Acclaim Group Limited under these terms of trade is intended solely for the use of your company. All “Direct Products” (as defined in the United States Department of Commerce Comprehensive Export Schedule) of such technology, technical information and technical data are intended solely for the use of you and your customers within such countries as are not forbidden or restricted now or hereafter by United States Export Administration laws; and those Direct Products shall not be exported except in strict compliance with all United States Export Administration laws and all other applicable United States laws, as now or hereafter exist. Acclaim Group Limited expressly reserves the right to refuse any order which, in Acclaim Group Limited’s sole judgment is or may be a violation of such laws on the part of you or your customers.
11. Limitation of liability
11.1 The provisions of the Consumer Guarantees Act shall not apply to any supply of Products to you, and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or implied by common law will not apply and are excluded from these terms of trade.
11.2 The Client is responsible for ensuring that it has a complete and verified back up of all data and applications at all relevant times. Acclaim will not be responsible for ensuring that a back up has been made. Acclaim does not accept responsibility to The Client or any third party for damage, and/or deletions of The Client’s electronic records in connection with Acclaim’s services.
11.3 Acclaim’s entire liability, and The Client’s exclusive remedy, with respect to any services provided by Acclaim pursuant to any development, services or otherwise as requested by The Client is strictly limited to the time taken for Acclaim to remedy the defect or replacement of the defective items. Acclaim and its contractors, employees and agents shall not be liable to The Client or any third party, in tort, contract or otherwise for any direct, indirect, incidental, special or consequential damages, loss of profit or loss or liability resulting from, but not limited to, data non-delivery or missed delivery of data, acts of God, the unauthorized use or misuse of The Client’s systems, errors, omissions, or misstatements in any and all information or services provided by Acclaim, the interruption of The Client’s service or damage to The Client’s computer records. This exclusion of liability includes, but is not limited to, costs (including costs of returning Products to Acclaim Group Limited or to any manufacturer or licensor), consequential loss, 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, components, manufacture, compilation, or assembly of the Products.
11.4 We will not be liable to you for any losses caused by events beyond our reasonable control. We will not be required to settle a strike or lockout or other industrial disturbance against our wishes in order to benefit from this clause.
11.5 You indemnify us against all costs (including legal costs on a solicitor and own client basis) expenses, losses, damages or claims arising in any way as a result of your failure to comply with any part of these terms of trade.
12. Intellectual property and Confidentiality
12.1 All intellectual property shall remain the property of Acclaim Group Limited or any Supplier entitled to it, and neither Acclaim Group Limited nor its Suppliers transfer any right, title or interest in the intellectual property to you. The Client acknowledges that all intellectual property rights, including copyright relating to the Library Code and the Source Code are the sole property of Acclaim and agrees to keep such intellectual property rights confidential to the extent that they are not public knowledge.
12.2 You must not use any trade marks which are the property of Acclaim Group Limited or its Suppliers, or any similar words or marks, or any combination of words which includes any of those trade marks or any similar words or marks, except to the extent authorized by Acclaim Group Limited in writing.
12.3 You agree to dispatch the Products only under the trade marks under which they are supplied by Acclaim Group Limited, and under no circumstances shall you apply any of the trade marks to any product which is not a genuine branded product supplied to you by Acclaim Group Limited.
12.4 You must not cause or permit anything which may interfere with, damage or endanger the trade marks or other intellectual property rights of Acclaim Group Limited or its Suppliers, or assist or allow others to do so.
12.5 You must advise Acclaim Group Limited immediately when you become aware of any unauthorized use or attempted use by any person of the trade marks or other intellectual property rights of Acclaim Group Limited or its Suppliers.
12.6 You may not register a business name incorporating the words “Acclaim Group Limited”.
12.7 If your account with Acclaim Group Limited is terminated, you must immediately discontinue use of any of the trade marks which are the property of Acclaim Group Limited in any sign, or advertising and thereafter you shall not use those trade marks directly or indirectly in connection with your business.
12.8 You agree to ensure that all Confidential Information given by Acclaim Group Limited to you is made available to your employees only on the basis that those employees at all times maintain strict confidentiality.
12.9 Any modifications or updates, whether carried out by Acclaim, Licensee or any other person, remain the property of Acclaim.
12.10 This clause 12 shall survive the termination of the Agreement.
If any dispute between the parties arises concerning this agreement the parties agree that the dispute:
Will first be referred by any responsible representative of either party to the chief executive officers of each party who must meet together with the objective of reaching an acceptable commercial solution to the problem.
If such an agreed solution cannot be reached to the satisfaction of both parties within 5 days of the reference of the dispute to the chief executive officers of the parties either of those officers may then refer the dispute to mediation in accordance with the rules of the LEADR.
If the dispute is not settled by agreement between the parties within 30 days of the commencement of mediation proceedings then either party may refer the matter to arbitration in accordance with the Arbitration Act 1996. The decision of the arbitrator is final and binding on the parties.
While any such dispute remains unresolved the parties agree to continue the performance of the agreement to the extent that such performance is possible given the nature of the dispute.
Any information or material or settlement proposals disclosed or made during the preceding dispute resolution proceedings are made on a without prejudice basis and the parties agree to use their best endeavours to ensure that all such information, material and proposals and the existence of any dispute between them is kept strictly confidential.
14. General Conditions
14.1 Acclaim Group Limited reserves the right to change these terms of trade from time to time.
14.2 If Acclaim Group Limited fails to enforce any terms or to exercise its rights under these terms of trade at any time, Acclaim Group Limited has not waived those rights.
14.3 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.
14.4 This agreement is governed by the laws of New Zealand and any dispute under it shall be subject to the exclusive jurisdiction of the Courts of New Zealand.
15. Consumer Guarantees Act (CGA)
15.1 The Customer acknowledges that all products supplied by the Company to the Customer have been acquired by the customer for the purposes of re-supply in trade, or strictly for business use only.
15.2 If, notwithstanding clause 1 above, any of the products are acquired by the Customer for the Customer’s own use, the customer acknowledges such products are acquired for the purposes of a business, and the provisions of the CGA are expressly contracted out of to the extent permitted by the CGA.
15.3 Nothing in the conditions of sale is intended to have the effect of contracting out of the provisions of the CGA except to the extent permitted by that Act and these conditions of sale are deemed to be modified to the extent necessary to give effect to this intention.