Terms of Business
DEFINITIONS
1.1 “Layer 3″ shall mean Layer 3 LTD or any employees, agents or duly authorised representatives thereof.
1.2 “Contract” shall mean the supply of Products and/or Services from Layer 3 to the Customer in accordance with these terms of business.
1.3 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing Products and/or Services from Layer 3.
1.4 “Products” shall mean:
1.4.1 All goods, hardware, software, equipment or products of the general description specified on any invoice and supplied by Layer 3 to the Customer; and
1.4.2 All goods or products supplied by Layer 3 to the Customer; and
1.4.3 All inventory of the Customer that is supplied by Layer 3; and
1.4.4 All goods or products supplied by Layer 3 and further identified in any invoice issued by Layer 3 to the Customer from time to time, and which invoices are deemed to be incorporated into and form part of this Contract; and
1.4.5 All goods or products that are marked as having been supplied by Layer 3 or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Layer 3; and
1.4.6 All of the Customer’s present and after-acquired goods or products that Layer 3 has performed work on or to or in which goods or products or materials supplied or financed by Layer 3 have been attached or incorporated.
1.4.7 The above descriptions may overlap but each is independent of and does not limit the others.1.5 “Services” shall mean all services and advice provided by Layer 3 to the customer and shall include without limitation the provision of installation services, remedial services, fault diagnosis services, labour charges or any fee or charge associated with the supply of Products and/or Services by Layer 3 to the Customer.
1.6 “Price” shall mean the cost of the Products and/or Services as agreed between Layer 3 and the Customer and includes all disbursements eg charges Layer 3 pay to others on the Customer’s behalf subject to clause 4 of this Contract.
1.7 “PPSA” shall mean The Personal Property Securities Act 1999 and any amendments to it.
2. ACCEPTANCE
2.1 Any instructions received by Layer 3 from the Customer for the supply of Products and/or Services shall constitute a binding Contract and acceptance of the terms of business contained herein. These terms of business may change from time to time and are available on our website www.layer3.net.nz/about-us/terms-of-business/
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Layer 3 to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this Contract, or marketing any Products and/or Services provided by Layer 3 to any other party.
3.2 The Customer authorises Layer 3 to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4. PRICE
4.1 Where no price is stated in writing the Products and/or Services shall be deemed to be sold at the then current amount charged for such Products and/or Services sold by Layer 3 at the time of delivery of the said Products and/or Services.
4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Products and/or Services that is beyond the control of Layer 3 between the date of the Contract or request for the supply of Products and/or Services (whichever may be applicable) and date of delivery of the Products and/or Services.
5. PAYMENT
5.1 Payment for Products shall be made in full without deduction or set-off for any reason on the date of delivery, and payment for Services shall be made without deduction or set-off for any reason on the 20th day of the month following the date of the invoice (“the due date”).
5.2 Interest may be charged on any amount owing after the due date at the rate of 2% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by Layer 3 in the enforcement or attempted enforcement of any rights, powers of remedies contained in this Contract shall be paid by the Customer, including any reasonable solicitor’s fees (on a solicitor-client basis) or debt collection agency fees.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 A deposit may be required.
5.6 Any provision for a “pay when paid” clause or a “pay if paid” clause shall not apply to Layer 3 when Products and/or Services are provided by it to the Customer.
5.7 If payment is made by credit card, then Layer 3 may recover the credit card fees or other charges incurred.
5.8 Where any payment has not been made by the due date, Layer 3 may withhold the supply of Products and/or Services at its sole discretion.
6. QUOTATION
6.1 Where a quotation is given by Layer 3 for Products and/or Services to a Customer:
6.1.1 Unless otherwise agreed the quotation shall be valid for seven (7) days from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax or freight costs unless specifically stated to the contrary; and
6.1.3 Layer 3 reserves the right to alter the quotation because of circumstances beyond its control.6.2 Where Products and/or Services are required in addition to the quotation the Customer agrees to pay for the additional cost of such Products and/or Services.
7. RISK AND DELIVERY
7.1 The Products and/or Services remain at Layer 3′s risk until delivery to the Customer.
7.2 Delivery of Products and/or Services shall be deemed complete when Layer 3, or an agent including a manufacturer, gives physical possession of the Products and/or Services directly to the Customer or possession of the Products and/or Services is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
7.3 The time agreed for delivery shall not be an essential term of this Contract unless the Customer gives written notice to Layer 3 making time of the essence and provided always that Layer 3 accepts in writing that time shall be of the essence.
7.4 Where Layer 3 delivers Products and/or Services to the Customer by instalments and Layer 3 fails to deliver or supply one or more instalments the Customer shall not have the right to cancel the Contract but shall have the right to claim compensation as a severable breach.
7.5 The Customer will ensure that Layer 3 is provided with reasonable access to the delivery address together with adequate room for unloading. The Customer indemnifies Layer 3 against all costs and liabilities Layer 3 incurs with or arising out of the delivery or in unloading.
8. AGENCY
8.1 The Customer authorises Layer 3 to contract on its behalf either as principal or agent for the provision of Products and/or Services that may form the whole or part of the subject matter of this contract.
8.2 Where Layer 3 enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this Contract and the Customer agrees to pay any amounts due under the former contract.
9. TITLE AND SECURITY
9.1 Title in any Products and/or Services supplied by Layer 3 passes to the Customer only when the Customer has made payment in full for all Products and/or Services provided by Layer 3 and of all other sums due to Layer 3 by the Customer on any account whatsoever.
9.2 The Customer hereby grants Layer 3 a security interest pursuant to the PPSA over the Products and all of the Customer’s present and after-acquired personal property as collateral for all monies owing by the Customer to Layer 3 for the supply of Products and/or Services and any other monies that become payable under this Contract.
9.3 The Customer agrees that Layer 3′s rights in respect of the Products (and proceeds of the same) continue in respect of any goods with which the Products supplied become part of or are co-mingled with and extend further to include any moneys wherever held which are the proceeds of any sale of the Products supplied prior to full payment being made in respect of the same by the Customer to Layer 3.
9.4 The Customer shall insure and keep insured the Products to the full price payable against all risks until all payment in full for the Products has been received by Layer 3.
10. LIABILITY
10.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Layer 3 which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Layer 3, Layer 3′s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
10.2 Except as otherwise provided by clauses 11.1-11.5, Layer 3 shall not be liable for:
10.2.1 Any loss or damage of any kind whatsoever including loss of profits and consequential loss whether suffered or incurred by the Customer or another person and whether in Contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Products and/or Services provided by Layer 3 to the Customer; and
10.2.2 The Customer shall indemnify Layer 3 against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Layer 3 or otherwise, whether or not brought by any person in connection with any matter, act, omission, or error by Layer 3 its agents or employees in connection with the Products and/or Services.
11. WARRANTY
11.1 The warranty period for Products supplied by Layer 3 to the Customer is for the period of any manufacturer’s warranty. The warranty period is measured from the date of delivery.
11.2 Any claim under a manufacturer’s warranty shall only cover the repair or replacement costs as detailed in the manufacturer’s warranty, and the Customer acknowledges that such warranty shall not cover any of Layer 3′s labour costs or charges relating to the diagnosis of any faults or defects. The Customer shall pay the labour costs or charges incurred by Layer 3 associated with the diagnosis of any faults or defects.
11.3 Any warranty provided by Layer 3 under this Contract shall not assure uninterrupted operation of the Products and/or Services.
11.4 Any warranty provided by Layer 3 under this Contract is conditional upon:
11.4.1 The use of Products and/or Services by the Customer in accordance with the information, instructions and specifications supplied by Layer 3;
11.4.2 The use of Products and/or Services only for the purpose for which they were designed.
11.5 Any warranty provided by Layer 3 under this Contract shall be invalid if:
11.5.1 Any fault, damage or defect in the Products and/or Services is the result of alterations or modifications to the Products and/or Services and such alterations or modifications were not authorised in writing by Layer 3;
11.5.2 Any fault, damage or defect in the Products and/or Services is the result of the use of other hardware, software, equipment or products in combination with the Products and/or Services supplied by Layer 3 and such use was not authorised in writing by Layer 3;
11.5.3 Any fault, damage or defect in the Products and/or Services has been caused by power surges or user error.
11.6 Any other written warranty that Layer 3 may agree to provide the Customer shall also form part of this Contract.
11.7 No representation, condition, warranty or promise whether expressed or implied by law or otherwise whatsoever applies to the Products and/or Services except where Products and/or Services are supplied pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in this Contract.
11.8 Layer 3 does not provide any warranty that the Products and/or Services are fit and suitable for the purposes for which they are required by the Customer and shall not be liable if they are not.
12. COPYRIGHT, TRADE MARKS & INTELLECTUAL PROPERTY RIGHTS
12.1 The Customer acknowledges that all the intellectual property rights in the Products and/or Services (including but not limited to copyright, trade marks, patents, confidential information and identifying trade names) are the sole and exclusive property of Layer 3. The Customer shall not in any way question or dispute the ownership by Layer 3 of any such intellectual property rights.
12.2 The Customer shall not obtain, either under this Contract or by reason of its use of the Products and/or Services, any right to copy the materials comprising the Products and/or Services.
12.3 The Customer may use the Products and/or Services for the purpose(s) for which they were intended and supplied by Layer 3 upon receipt of payment in full of the Products and/or Services. Layer 3 may, at its sole and absolute discretion, assign any intellectual property rights to the Customer which may attach to the Products and/or Services.
12.4 Any modifications, enhancements or updates to the Products and/or Services, whether carried out by Layer 3 or any other person, shall remain the sole and exclusive property of Layer 3. The Customer agrees to indemnify Layer 3 against all liabilities, costs and expenses which Layer 3 may incur as a result of any use of such modified, enhanced or updated Products and/or Services involving infringement of any proprietary or other intellectual property rights.
13. CONFIDENTIAL INFORMATION
13.1 All information, data, drawings, specifications, documentation, software listings, procedures, source or object code which Layer 3 makes available to the Customer relating to the Products and/or Services are proprietary and confidential. The Customer shall not disclose it directly or indirectly to any third party without Layer 3′s prior written consent.
13.2 The Customer agrees that it shall not itself or through any subsidiary, agent or third party copy, decompile, sell, lease, license, sub-license or otherwise deal with the Products and/or Services or any variations, modifications, copies, releases, versions or enhancements of the Products and/or Services without Layer 3′s prior written consent.
13.3 The Customer agrees that it shall not itself or through any subsidiary, agent or third party have any software or other program written or developed for itself based upon any confidential information supplied to it by Layer 3.
14. CONSUMER GUARANTEES ACT
14.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products and/or Services from Layer 3 for the purposes of a business in terms of section 2 and 43 of that Act.
14.2 Should Layer 3 breach any of its obligations to a Customer where such Customer is deemed to be a “consumer” for the purposes of the Consumer Guarantees Act, then Layer 3′s liability to that Customer shall be limited to the greater of either:
14.1.1 The costs of replacing the Products in respect of which the obligation has been breached with product of equivalent specification; or
14.1.2 The price for those Products and/or Services paid by the Customer.
15. CANCELLATION
15.1 Once an order has been accepted by Layer 3, it can only be cancelled, varied or suspended (whether in whole or in part) upon the following terms and conditions.
15.1.1 No cancellation, variation or suspension will be effective or recognised unless, and only to the extent that Layer 3 agrees in writing to such cancellation, variation or suspension;
15.1.2 The Customer agrees to accept delivery of all Products held by Layer 3 in respect of such order and all Products in transit to or subsequently delivered to Layer 3 for such order;
15.1.3 The Customer agrees to pay all costs, expenses and liabilities incurred by Layer 3 in consequence of the cancellation, variation or suspension of the order;
15.1.4 Subject to clause 15.1.1 above, Layer 3 will only accept the return of Products which are in original condition, unopened (with any seals or shrinkwrap intact) and undamaged. Layer 3 can only accept the return of opened items if they are faulty.
16. EQUIPMENT & SOFTWARE MAINTENANCE & SUPPORT
16.1 These terms of business relate exclusively to the supply of Products and/or Services. In the event that the Customer wishes to purchase any maintenance or support services to operate the Products and/or Services, the Customer agrees to enter into an exclusive separate maintenance and support agreement with Layer 3.
17. DATA BACK-UP & SECURITY OF COMPUTER SYSTEMS
17.1 The Customer acknowledges and agrees that it will:
17.1.1 Initiate and maintain effective systems to back-up all information and data inputted to the Customer’s computer systems (including the Products and/or Services); and
17.1.2 Install and/or maintain appropriate security measures (including software protection) to protect the Customer’s computer systems (including the Products and/or Services) from security breaches, bugs or computer viruses.
17.2 Under no circumstances will Layer 3 be liable in contract, tort or any other principle of legal liability, or to compensate the Customer for any loss, injury, or damage whatsoever (including but without limitation consequential loss or damage, loss of profit, business, revenue, good will or anticipated savings) arising directly or indirectly from any failure by the Customer to:
17.2.1 Back-up such information and inputted data as provided in clause
17.1.1 above (including any such loss, injury or damage to back-up copies);
17.2.2 Install and/or maintain appropriate security measures as provided in clause 17.1.2 above.
18. INTERMITTENT FAULTS
18.1 Due to the nature of computer equipment and software, the Customer acknowledges and agrees that from time-to-time Layer 3 may be required to examine, investigate or diagnose intermittent faults which may arise from the Customer’s use of the Products and/or Services. Layer 3 does not warrant that the Customer’s use of the Products and/or Services will be uninterrupted. The Customer must immediately notify Layer 3 of such intermittent faults. The Customer agrees to meet Layer 3′s then applicable charges for examining, investigating or diagnosing intermittent faults (including travelling time or associated expenses), except where such charges are covered by a manufacturer’s warranty.
18.2 The Customer undertakes with Layer 3 that the Customer will not permit any unauthorised third person to examine, investigate, diagnose or repair any faults with the Products and/or Services without the prior written consent of Layer 3. The Customer further undertakes that it will be fully responsible for all Layer 3′s costs of rectifying the Products and/or Services should any such unauthorised action(s) take place.
19. MISCELLANEOUS
19.1 Layer 3 shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
19.2 Failure by Layer 3 to enforce any of the terms and conditions contained in this Contract shall not be deemed to be a waiver of any of the rights or obligations Layer 3 has under this Contract.
19.3 If any provision of this Contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.4 The Customer shall not assign all or any of its rights or obligations under this Contract without the written consent of Layer 3.
19.5 Where these terms of business are at variance with the order or instructions from the Customer these terms of business shall prevail.
19.6 If required by Layer 3 the Customer will store Products and/or Services supplied by Layer 3 in a way that enables them to be identified as having been supplied by Layer 3.
20. CHARGES
20.1 A minimum charge of one hour applies to all onsite service calls which is inclusive of all travel time to and from site. A minimum charge of 30 minutes applies to remote or telephone support. Where service and/or support work is required outside core business hours of 8.00am to 5.30pm weekdays, or on statutory days and weekends, Layer 3 will charge a surcharge per hour over and above the normal hourly charge for such services. Unless specifically agreed otherwise, a call out fee will also apply. Layer 3 may vary its charge out rates at its discretion.
21. UNSOLICITED ELECTRONIC MESSAGES ACT 2007
21.1 It is acknowledged that the client consents to receiving email, instant messaging, SMS and MMS (text and image-based mobile phone messaging) of a commercial nature.
22 January, 2012.
Subject to change.
