Terms & Conditions of Sale

 SILICON SYSTEMS LIMITED (“Silicon”)

 

TERMS AND CONDITIONS OF SALE

 The terms and conditions detailed below govern the supply of Products by Silicon to the purchaser of the Products (“the Buyer”).  In these terms and conditions “Products” means computer hardware, peripherals, accessories, software (including all relevant documentation, manuals, printed and other written matter) and any other goods and services such as expertise, technical resource, remedial work, technology capability, administration, technology automation and any other benefits, supplied by Silicon to the Buyer in exchange for payment of such Products.

 The Buyer agrees to buy the Products on the terms and conditions set out herein:

 1.0  Price and Terms of Payment:

 

  • Silicon’s price for Products sold to the Buyer shall be the total net price set out [either: on the front of the invoice / within the order details online] as determined by Silicon from time to time.

 

  • In addition to the total net price of the Products set out on the front of the invoice, the Buyer shall pay GST and all such taxes, duties, fees, transport costs, postage and packaging costs and other costs which Silicon determines are payable in respect of the Products ordered by the Buyer (“the Buyer’s Order”) together with any GST ( “the Total Price”).

 

  • Subject to clause 2.4, payment by the Buyer of all the amounts owing under these terms and conditions shall be due upon delivery of the Products, unless Silicon has entered into a written credit arrangement with the Buyer authorising payment on other terms. If such an arrangement exists, payment by the Buyer shall be in strict accordance with that credit arrangement.

 

  • Notwithstanding clause 1.3, if the Buyer commits an act of bankruptcy, compounds or arranges with all or a number of its creditors or being a company has a receiver appointed, goes into liquidation whether voluntarily or otherwise, or enters into a voluntary administration arrangement, then payment of all amounts owing under these terms and conditions by the Buyer shall be due immediately upon the happening of any such event. The parties acknowledge that the performance of this clause is essential to Silicon.

 

  • Where any amounts have become due and payable pursuant to clause 1.3 or 1.4, then without prejudice to Silicon’s right to sue for payment or any other remedy Silicon may have, the following shall apply:­

 

  • All amounts payable to Silicon in respect of any Products delivered to the Buyer shall thereupon become immediately due and payable to Silicon without further notice; and

 

  • Interest shall be payable by the Buyer on all amounts due to Silicon at the rate of 24% per annum, calculated on a daily basis from the due date for payment until payment is received in full by Silicon; and

 

  • The Buyer shall pay all of Silicon’s legal costs (including Solicitor/Client costs) pertaining to any enforcement action taken by Silicon against the Buyer for payment of all or any amounts due.

 

 

  • Delivery of Products:

 

  • Silicon shall deliver the Products to the Buyer as soon as is reasonably practicable after acceptance of the Buyer’s Order.

 

  • Delivery of Products shall be deemed to have taken place when Silicon delivers the Products to the Buyer or the Buyer’s agent or any other person or carrier to whom Silicon has been authorised by the Buyer to deliver such Products whether expressly or impliedly and whether in writing or orally.

 

  • Unless expressly agreed in writing between the parties as to the means of delivery of the Products, Silicon may effect delivery in any manner Silicon determines.

 

  • Silicon may deliver the Products by instalments (where in Silicon’s opinion this is reasonable to do so) and issue interim invoices to the Buyer. The buyer shall pay the amount of any interim invoice by the due date set out on the interim invoice. Without limiting any other provision in this document, failure by the Buyer to pay any interim invoice, or any other amount when due, will entitle Silicon to withhold or delay delivery of any remaining Products ordered.

 

  • Delivery of services performed by Silicon shall be deemed to have occurred upon completion of the services.

 

  • All references to proposed delivery dates made by Silicon whether orally or in any invoice or in any other form of communication are estimates only and Silicon shall not be bound by such estimates. Silicon will not be liable to the Buyer for any delay in delivery for any reason whatsoever.

 

  • Any software licence is an arrangement between the Buyer and the software company who provided the licence. Compliance with the terms of the licence is the Buyer’s responsibility.

 

  • Silicon is not liable for any intellectual property infringements of the Buyer against any 3rd party software manufacturer.

 

 

  • Return of Products:

 

  • Where the Products are of acceptable quality and otherwise comply with the other guarantees set out in the Consumer Guarantees Act 1993, the Buyer may not return the Products supplied by Silicon in accordance with the Buyer’s Order unless Silicon expressly agrees in writing to a request from the Buyer to accept the return of the Products and the Buyer complies with all the terms and conditions (if any) that Silicon may impose as prerequisite to accepting the return of the Products.

 

 

 

  • Title and risk:

 

  • Until all monies owing by the Buyer to Silicon are paid in full, title to the Products is retained by Silicon. Until then, the Buyer is a bailee of the Products and the Buyer must comply with all of the following conditions:

 

  • Keep them in its possession and control.

 

  • Keep them in good repair and condition, excluding fair wear and tear.

 

  • Keep them stored separately and marked so that the Products are clearly and easily identifiable as Silicon’s property and inform Silicon of the location of the Products, if requested.

 

  • Not sell, assign or let them or any interest in them, or permit any charge, pledge, lien or other encumbrance to be created in relation to them.

 

  • Maintain and allow Silicon to inspect records which do any of the following:

 

  • Identify any Products owned by Silicon.

 

  • Detail third parties to whom the Buyer sells or otherwise disposes of the Products owned by Silicon.

 

  • Detail payments made by such parties for the Products owned by Silicon.

 

  • If the Buyer does not pay for any Products on the due date for payment, the Buyer authorises Silicon, its employees and agents to enter the Buyer’s premises (and any premises under the control of the Buyer or an agent of the Buyer if the Products are located on those premises) and use reasonable force to retake possession of the Products without liability for trespass or damage. Silicon may at its option keep or resell Products retaken from the Buyer.

 

  • If the Buyer sells the Products before payment in full to Silicon, the Buyer holds the proceeds on trust for Silicon in respect of those Products, and must keep such proceeds in a separate account until the liability to Silicon is discharged and must immediately pay that amount to Silicon.

 

  • Despite the retention of these rights, Silicon may recover the price of the Products from the Buyer.

 

  • The risk in Products supplied passes to the Buyer at the time of dispatch of the Products from Silicon’s premises.

 

 

  • Insurance:

 

  • The Buyer must keep the Products insured against all risks for Products of that kind from the time the risk in the Products passes to the Buyer until the time title in the Products passes to the Buyer. In any event that the products are damaged before title in the products passes to the Buyer, the Buyer must hold the proceeds of that insurance on trust for Silicon up to the amount it owes Silicon in respect of those Products, and must keep such proceeds in a separate account until the liability to Silicon is discharged and must immediately pay that amount to Silicon. But note there is no obligation on the Buyer to claim under the insurance.

 

 

  • Silicon’s Liability and warranty:

 

  • Where the Buyer does not make known either expressly or by implication to Silicon the purpose for which the Products are being acquired by the Buyer, then the Buyer shall ensure the Products supplied are reasonably fit for the purpose for which the Products are being acquired by the Buyer and Silicon shall not be liable if the Products are not fit for such purpose.

 

  • Except as implied by statute or expressly provided for in these terms and conditions, all liability including for physical and financial consequential loss or damage and whether from negligence or misuse of Products is excluded.

 

  • The conditions, warranties and guarantees set out in the Sales of Goods Act 1908 or implied by common law will not apply and are excluded from these terms and conditions.

 

  • Silicon’s maximum liability to Buyers shall be limited to the value of any faulty Products supplied, and Silicon and its employees, contractors and agents will not be liable to the Buyer for loss or damage of any kind however that loss or damage is caused or arises. This exclusion of liability includes, but is not limited to, costs (including costs of returning products to Silicon to any manufacturer or licensor), consequential loss, loss of profits and damage caused by or arising from delays in manufacturing or delivery, faulty 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 Products.

 

  • The Buyer shall indemnify Silicon and keep Silicon fully and effectively indemnified against any loss of or damage to any property, injury to or death of any persons caused by any negligent act or omission or wilful misconduct of the Buyer, its employees, agents or subcontractors or by any breach of its contractual obligations arising out of these terms and conditions.

 

 

  • Warranties:

 

  • Products are subject to manufacturers warranties. Silicon will use reasonable endeavours to pass on the benefit of these warranties to the Buyer but is not liable under the warranty.

 

  • Silicon warrants that all its products (excluding all third party products) shall be free from defects in materials and workmanship affecting normal use for a period of one year from invoice date. Silicon may provide additional warranties to the Buyer. Any additional warranties provided by Silicon must be in writing.

 

  • 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, unauthorised repairs, modifications or the addition of a compatible hardware.

 

  • Business Use:

 

  • The Buyer hereby acknowledges that if the Buyer is acquiring Products from Silicon for the purpose of a Business (as that term is defined in the Consumer Gurantees Act 1993) then the Buyer and Seller hereby expressly agree that the provisions of the Consumer Guarantees Act 1993 shall not apply to the agreement for the supply of the Products.

 

  • Where clause 8.1 applies, the Buyer hereby warrants and undertakes with Silicon that the Buyer shall in a like manner contract out of the provisions of the Consumer Guarantees Act 1993 where the Buyer is onselling the Products to a consumer who is acquiring the Products for the purpose of a business.
  • The Buyer hereby indemnifies Silicon for all liability, costs, damages and loss Silicon may suffer from the Buyer’s failure to comply with clause 8.3 hereof.

 

 

  • Spare Parts and Service:

 

  • The Buyer hereby acknowledges that Silicon has given the Buyer notice before the time the Products were supplied to the Buyer (as required by Section 42 of the Consumer Guarantees Act 1993) that the manufacturer of the Products does not undertake that repair facilities and parts will be available for those Products after twelve (12) calendar months from the date of this invoice. The Buyer shall, if required by Silicon sign an acknowledgement in writing to this effect.

 

 

 

  • Dispute Resolution:

 

  • The Buyer and Silicon hereby agree that any dispute or difference (“the Dispute’) which may arise between the Buyer and Silicon as to the meaning or application of any part of these terms and conditions or any other matter touching or concerning these terms and conditions shall be actively and in good faith negotiated by the parties with a view to a speedy resolution of the Dispute.

 

  • If the Buyer and Silicon are unable to resolve the Dispute, then the Buyer and Silicon hereby agree to endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation or such similar techniques agreed upon by the Buyer and Silicon.

 

  • If the Buyer and Silicon do not agree within five (5) business days as to the dispute resolution techniques and procedures to be adopted then the Dispute shall be referred by the parties to arbitration pursuant to the Arbitration Act 1996 or any statutory provisions relating to arbitration.

 

 

  • Personal Property Securities Act 1999:

 

  • The Buyer acknowledges and agrees that by assenting to these terms and conditions the Buyer grants a security interest (as that term is defined in the Personal Property Securities Act 1999) to Silicon in all Products previously supplied by Silicon to the Buyer (if any) and all after acquired Products supplied by Silicon to (or for the account of) the Buyer.

Financing statement

  • The Buyer undertakes to:
    • sign any further documents and/or provide any further information (which information the Buyer warrants to be complete, accurate and up-to-date in all respects) which Silicon may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
    • not register a financing statement or a change demand without the prior written consent of Silicon; and
    • give Silicon not less than 14 days written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including, but not limited to, changes in the Buyer’s address, facsimile number, trading name or business practice).

Waiver

  • Unless otherwise agreed to in writing by Silicon, the Buyer waives its right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
  • On the request of Silicon the Buyer shall promptly execute any documents and do anything else required by Silicon to ensure that the security interest created under these terms and conditions constitutes a first ranking perfected security interest over the Products and their proceeds.
  • The Buyer will pay to Silicon all costs, expenses and other charges incurred, expended or payable by Silicon in relation to the filing of a financing statement or a financing change statement in connection with these terms and conditions.
  • Certain provisions not to apply
    • Silicon and the Buyer agree that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the Personal Property Securities Act (Act) shall apply to these terms and conditions.
    • Silicon and the Buyer also agree that the rights of the Buyer as debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the Act shall not apply to these terms and conditions.

 

  • Silicon’s other rights and remedies:

 

  • The rights and remedies provided in these terms and conditions will not limit any other rights or remedies available to Silicon.

 

  • Silicon reserves the right to change these terms and conditions at any time.

 

 

  • Force Majeure

 

Silicon will not be liable for any delay in performing any of its obligations under these terms and conditions if such delay is caused by circumstances beyond the reasonable control of Silicon, and Silicon shall be entitled to a reasonable extension of time for the performance of such obligations.

 

 

  • Proper Law:

 

  • This Agreement and these terms and conditions of Sale shall be governed by New Zealand law and the New Zealand Courts shall have non exclusive jurisdiction in connection herewith. The Buyer will not object to the exercise of jurisdiction by those Courts on any basis.