GENERAL TERMS AND CONDITIONS
1. ACCEPTANCE
1.1. Acceptance of these terms and conditions contained herein (including any Annexures or schedules, where applicable), will be deemed accepted once the Client places an order for, Goods or accepts the delivery of Services provided by PC Onsite. In such events, the Client will immediately bound, jointly and severally, by these terms and conditions.
1.2. No amendment of this Contract will be of any force or effect, unless in writing signed by an authorised representative of each party.
1.3. At the time of signing this Contract, both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so. The Client warrants that they are not insolvent and accepts that this Contract creates a binding and valid legal obligation on them, to meet all their debts as and when they fall due.
1.4. None of PC Onsite’s agents or representatives are authorised to make any representation, statements, conditions, or agreements not expressed by PC Onsite or its authorised representative, in writing nor is PC Onsite bound any such unauthorised statements.
1.5. PC Onsite acts always, in the best interest of the Client, thereby, any advice, recommendations, information, assistance, or service provided by PC Onsite to the Client or the Client’s agent/representative, in respect of the Goods or supply of Services is based on PC Onsite’s knowledge and experience. Where such advice or recommendations are not acted upon, then PC Onsite shall require the Client or their agent/representative to authorise commencement of the Services in writing. PC Onsite does not accept any liability in any way whatsoever, for any damages or losses that occur, subsequently after PC Onsite is instructed to re-commence the supply of Services.
1.6. Where PC Onsite has been provided with an email address from the Client for e-communications, both parties agree to fully comply with all current requirements by law pertaining to electronic messaging.
2. CLIENT’S AUTHORISED AGENT/REPRESENTATIVE
2.1. Where the Client elects to appoint an authorised agent/representative, the Client thereby acknowledges and accepts that once introduced that person shall have the full authority of the Client to order or request any variation thereto, the Goods or Services, on the Client’s behalf (such authority shall continue until all requested Goods or Services have been completed, or the Client otherwise notifies PC Onsite in writing that said person is no longer the Client’s authorised agent/representative).
2.2. Subject to clause 2.1, if the authorised agent/representative is to have limited authority imposed by the Client, then the Client’s must serve notice in writing, to PC Onsite, detailing the specifically boundaries that apply.
2.3. Notwithstanding the conditions of clause 2.2, the Client remains liable for all additional costs incurred by PC Onsite (including PC Onsite’s profit margin) in providing any Services, or variation/s, regardless of whether the Client requested the supply directly or the Client’s authorised agent/representative.
3. ERROR AND OMISSIONS
3.1. PC Onsite shall have no liability, unless attributed to negligence and/or willful misconduct by PC Onsite, arising from any typographical, clerical, or other error, mistake or omission in any information, communication or other document or information issued by it.
4. PAYMENT TERMS
4.1. At PC Onsite’s sole discretion, the Charges shall be:
(a) As indicated on any invoice/s furnished by PC Onsite to the Client; or
(b) As per PC Onsite’s set non-refundable monthly Charges for the Services (“Plan”), which will be as stipulated (including when due and payable) by PC Onsite in the Plan; or
(c) Estimated Charges are subject to clause 5 and shall not be deemed binding upon PC Onsite as the final Charges, as the full and final costs can only be ascertained upon completion of the Services, thereby PC Onsite shall undertake to keep the Client informed should the final Charges look likely to exceed more than 10% of the original estimate; or
(d) PC Onsite’s quoted Charges (subject to clause 5) which will be valid for the period stated in the quotation, as otherwise for a period of 14 Business Days.
4.2. The Charges will be payable by the Client on the date determined by PC Onsite, which may be:
(a) On or before the delivery of the Services; or
(b) Credit Approved Client’s:
(i) By instalments in accordance with PC Onsite’s payment schedule; or
(ii) 20 Business Days following the end of the month in which a statement is posted/emailed to the Client’s address for service; or
(c) The date specified on any invoice/s or other form as being the date for payment; or
(d) Failing any notice to the contrary, the due date will be 7 Business Days following the date of any invoice/s furnished by PC
Onsite to the Client.
4.3. Deposits due, are at the discretion of PC Onsite and the non-refundable deposit amount may vary due to the nature of the Services or Goods to be supplied. Any deposit required will be stated at the time of quoting and shall become immediately due and payable upon the Client’s acceptance.
4.4. Payment is accepted by either electronic bank transfer, credit card (a surcharge may apply per transaction) or by any other method as agreed to between the Client and PC Onsite.
4.5. The Client shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Client by PC Onsite nor to withhold payment of any invoice because part of that invoice is in dispute. Where the Client believes that there has been a mistake made, PC Onsite requests that the Client contacts PC Onsite within 7 Business Days of receipt of the invoice/statement, so that PC Onsite may investigate any alleged error. If a mistake has occurred, the Client’s subsequent
invoice/statement will be adjusted.
4.6. Unless otherwise stated, the Charges will always be inclusive of GST. In addition, the Client must pay any other taxes and duties that may be applicable shall be added to the Charges except when they are expressly included in the Charges.
5. ADDITIONAL COSTS FOR VARIED SERVICES
5.1. No charge in the preparation of the initial quotation, which may include Client discussions, project scoping, research, testing, and business analysis, etc. However, in some instances the Services may be charged to the Client additionally (at PC Onsite’s sole discretion). Such as the Client requiring proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at PC Onsite’s hourly rate unless specified otherwise in the initial quotation, therefore, this
variation shall be detailed on the invoice as per sub-clause 5.2(f).
5.2. PC Onsite reserves the right to amend the Charges (upon written notice to the Client):
(a) All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client; and
(b) Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice; and
(c) Unless otherwise agreed, the Client accepts that:
(i) Fonts, or colour proofs, or artwork costs shall be borne by the Client where such items are specially purchased at the Client’s request for the project; and
(ii) All Services and support for email are chargeable in addition to the Charges; and
(d) Where the performance of any Contract with the Client requires PC Onsite to obtain products and/or services from a third party, the Contract between PC Onsite and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to PC Onsite, and the Client shall be liable for the cost in full including PC Onsite’s margin of such products and/or services; and
(e) Whilst every effort will be taken by PC Onsite to match virtual colours with physical colours, PC Onsite will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra and charged contra against final invoice; and
(f) PC Onsite reserves the right to amend the Charges where there is any variation to the accepted Plan of scheduled Services, or instructions/specifications, which will be charged for based on PC Onsite’s standard hourly rates (and double such rate for any Services provided outside PC Onsite’s normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion; and
(g) As a result of increases beyond PC Onsite’s reasonable control in the cost of materials or labour (i.e., third-party network operator or PC Onsite’s costs (i.e., google) or fluctuations in currency exchange rates, etc.). Where the Client is on a Plan, PC Onsite will provide 1 month’s written notice to the Client of any variation to the Charges thereof; and
(h) Call-out: - Outside the normal business hours (including but not limited to, working, through lunch breaks, weekends and/or Public Holidays), or an emergency call-out after hours, or causes PC Onsite to cancel or reschedule other work, are subject to a minimum call-out fee of 1 hour’s labour, at double time as per clause 5.2(f) plus a per kilometer travelled rate plus any Goods used to undertake the Services.
5.3. Any variations to the Client’s original quote, will be described in full as a variation on the invoice. The Client will be required to respond to any variation invoice presented by PC Onsite to the Client within 7 Business Days from the date of receipt of the invoice, failure to comply will permit PC Onsite to assume that the variation invoice is accepted without dispute. Payment will be due as per the date stated on the said invoice.
6. PROVISION OF THE SERVICES
6.1. Each project is unique to a Client and such costings of a project are estimated and based on the requirements as defined by the Client at the initial meeting and shall include the hours and timeframe that PC Onsite envisages it will take to complete, (subject to variations as per clause 5). The estimate covers the following:
(a) All technical, mandatory requirements and assumptions clearly itemised and disclosed by the Client prior to the initiation of the project to ensure all expected features and functionality have been correctly estimated; and
(b) Any additional work requested or required outside of the original estimate/scope needs to be agreed that PC Onsite is entitled to re-estimate the Charges and timeframe without prejudice; and
(c) Amendments which are to be expected should be kept to a minimum by receiving the styling, text, or content updates in batches in-line with the stage of the project, however, if in the opinion PC Onsite there is the need for more than one round of amendments, then the agreed number of changes must be established, prior to the commencement of the project.
6.2. The Client shall ensure that PC Onsite or PC Onsite’s representatives always having clear and free access to the Client’s Serviced Premises to enable them to provide the Goods or Services, (including but not limited to, for the purposes of installing, maintaining, monitoring, and removing such Goods or carrying out such work) or where it is deemed necessary, the Client further agrees to grant PC Onsite remote access to complete the Services. The Client shall be responsible where necessary in obtain any consents pertaining to access, PC Onsite shall not be liable in the event of any delays due to the Client not complying with this clause.
6.3. Any time specified by PC Onsite for provision of the Services is an estimate only and PC Onsite will not be liable for any loss or damage incurred by the Client because of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. If PC Onsite is unable to provide the Services as agreed solely due to any action or inaction of the Client, then PC Onsite shall be entitled to:
(a) Charge the Client additionally for re-providing the Services later at another time as to be agreed; or
(b) Subject to clause 18, terminate the Contract.
7. SOCIAL NETWORK TOOL (“SNT”)
7.1. The Client acknowledges and accepts that:
(a) If the Client wishes to engage a third-party consultant to work on a project together with PC Onsite, to carry out part of the Services, then the Client agrees to, in the first instance as an act of good faith, to advise of the proposed action prior to any engagement to ensure there is no issue or a conflict of interest; and
(b) PC Onsite does not guarantee the SNT’s performance; and
(c) Display on the SNT does not guarantee the availability of any Goods; therefore, all orders placed through the Client’s Website because of any post or other communication posted shall be subject to confirmation of acceptance by the Client; and
(d) The ability to post communications on a SNT may be unavailable from time to time due regularly scheduled maintenance and/or upgrades by the SNT provider; and
(e) There are inherent hazards in electronic distribution, and as such PC Onsite cannot warrant against delays or errors in posts appearing on any SNT.
7.2. With changes in technology, changes in internet use and SNT visiting patterns, SNT availability/life cycle, PC Onsite may suggest changes to the original proposal and recommend an alternative service. Any such suggestions and/or recommendations shall be communication to the Client prior to implementation of any changes.
7.3. The Client acknowledges that:
(a) All SNT used in the provision of the Services are subject to the terms and condition of service of the third-party provider and as such it is the Client’s responsibility to be familiar with those terms and conditions; and
(b) In PC Onsite’s use of the Client’s SNT, PC Onsite is acting as the Client’s agent and any liability arising from the use of the SNT account/s shall be the Client’s responsibility.
8. RISK AND LIMITATION OF LIABILITY FOR CLIENT DATA
8.1. The Client shall provide PC Onsite with data in the following formats:
(a) For text, files shall be in an electronic format as standard text (.txt) or Work (.doc) on a USB, CD-ROM or via email;
(b) For imaged, in an electronic format as prescribed by PC Onsite on a USB, CD-ROM or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. PC Onsite shall not be responsible for the quality of images scanned from printed materials;
(c) Additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and
art direction, photography searches, media conversion, digital image processing or data entry services.
8.2. The Client acknowledges and agrees that PC Onsite shall not be held responsible or liable for:
(a) Anything related to the Website, Hosting Services (if any) or any other Services provided; or
(b) Any supplied content breaching any Acts, legislation, or regulations, unless due to the negligence of PC Onsite; or
(c) Any loss, corruption, or deletion of files or data (including, but not limited to Software programmes) resulting from illegal hacking or Services provided by PC Onsite. Whilst PC Onsite will endeavour to restore the Website, files, or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to PC Onsite providing the Services. The Client accepts full responsibility for the Client’s Software and data and PC Onsite is not required to advise or remind the Client of appropriate backup procedures (unless included as part of
the Services);
(d) Any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that Software.
8.3. PC Onsite, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by PC Onsite to the Client.
8.4. The Services are provided on an “as is, as available” basis. PC Onsite specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
8.5. Public Access:
(a) The Client understands that by placing information on the Website, such information may be accessible to all internet users. PC Onsite does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity; and
(b) The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by PC Onsite, or on the internet generally.
9. GENERAL RISK
9.1. Risk of damage to, or loss, of the Goods shall pass to the Client on Delivery, it is the Client’s responsibility to ensure the Goods are adequately insured on or before Delivery.
9.2. Prior to ownership passing to the Client, if any of the Goods are damaged or destroyed following Delivery, PC Onsite is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by PC Onsite is sufficient evidence of PC Onsite’s rights to receive the insurance proceeds without the need for any person dealing with PC Onsite to make further enquiries.
9.3. The Client accepts and agrees that:
(a) If PC Onsite is instructed to leave Goods outside PC Onsite’s premises for the Client’s collection or delivery of Goods to an unmanned site, then such Goods will be left, at the Client’s sole risk; and
(b) If any information provided by the Client or the Client’s agent/representative is deemed inaccurate then PC Onsite shall not be responsible for any losses, damages, or costs (howsoever arising) that the Client suffers out of the use of the inaccurate plans, specifications, or other information;
(c) PC Onsite only accepts responsibility for the Goods that it replaces subject to a Repair Notice, no liability is accepted in respect of any previous goods or services supplied by any other third party that subsequently fail after PC Onsite has conducted its repair as requested and it is later discovered that the previous goods or services were the actual source of the failure; and
(d) All hardware presented to PC Onsite for assessment and/or repair by the Client, is at all times stored, and repaired, at the Client’s sole risk and it is the Client’s responsibility to ensure their hardware is adequately insured, against accident, damage, theft, fire and including any other standard risk covered by such insurance, whilst the hardware is stored at PC Onsite’s premises
10. DEFECTIVE GOODS OR SERVICES
10.1. The Client shall inspect the Goods on Delivery or Services on completion and shall within 7 Business Days of delivery (time being of the essence) notify PC Onsite of any alleged defect, damage, or failure to comply with the description or quote.
10.2. Notwithstanding clause 10.1 PC Onsite reserves the right to inspect the Services within a reasonable time following completion, if the Client believes the Goods or Services are defective in any way. If the Client shall fail to comply with these provisions, the Goods and Services shall be presumed to be free from any defect or damage and thereby PC Onsite shall have no liability or responsibility for any indirect or consequential injury, loss, damage, or expense whatsoever and howsoever that arises.
10.3. For the avoidance of doubt, in relation to any alleged defect in the Goods or Services provided, which PC Onsite has agreed in writing or to the extent allow by law, that the Client is entitled to reject, PC Onsite’s liability is limited to:
(a) Repair or replacement of the Goods; or
(b) Rectify the Services; or
(c) Payment of the cost of rectifying the Services by another third party, if PC Onsite is unable to do so; and
(d) If PC Onsite fails to, or is unable, to do so regarding any of the above, for whatever reason, PC Onsite shall then refund the Client the value of the total amount invoiced to the Client.
10.4. Returns will only be accepted provided that:
(a) The Client has complied with the provisions of clause 10.1; and
(b) PC Onsite has agreed in writing to accept the return of the Goods; and
(c) The Goods are returned at the Client’s expense within 7 Business Days of delivery date; and
(d) The Goods are returned in the condition in which they were delivered and with all packaging materials, brochures, and instruction documentations in as new condition as is reasonably possible in the circumstances.
10.5. Return of non-defective Goods for credit, will be at the sole discretion of PC Onsite. Furthermore, where Goods are accepted by PC Onsite for return, this shall be subject to a handling fee of 10% of the value of the returned Goods plus any freight.
10.6. For Goods not manufactured by PC Onsite, the warranty shall be the current warranty provided by the manufacturer of the Goods. PC Onsite 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.
11. COMPLIANCE WITH LAWS
11.1. Both parties agreed to comply with the provisions of all statutes of New Zealand, regulations and bylaws of Government, local and other public authorities, that may be applicable to the Goods supplied or the Services performed, including Health and Safety laws, in accordance with the Health and Safety at Work Act 2015 (“the HSW Act”).
11.2. The Client shall indemnify and hold PC Onsite harmless against all claims, liability, loss, or costs incurred by PC Onsite because of a breach by the Client of this clause 11.
12. INSURANCE
12.1. It is agreed that:
(a) PC Onsite is responsible for obtaining and maintaining Professional Indemnity Insurance and Public Liability Insurance (with appropriate cover for loss or damage to any other property, or injury or death or illness which arises from carrying out PC Onsite’s Services of not less than $5 million) to adequately cover itself and its subcontractors; and
(b) The Client shall also ensure they have in place adequate Public Liability Insurance during the provision of the Services and any other necessary insurance for the Serviced Premises and where possible, the Client will process a claim through its insurance if required.
13. TITLE
13.1. Title in any Goods supplied by PC Onsite in the provision of the Services does not pass to the Client until payment for the supply of such (together with any additional interest or charges as set out in these terms of trade) has been made in full by way of cleared funds and the Client’s obligations have been fulfilled, and until then PC Onsite’s ownership of the Goods or rights in respect of the Services shall continue.
13.2. Until such time as title passes (as per clause 13.1) to the Client, the Client holds:
(a) The Goods on trust for PC Onsite as bailee and must return the Goods to PC Onsite on request; and
(b) Irrevocably authorises PC Onsite to enter any property where PC Onsite believes the Goods is kept and recover possession, without PC Onsite being liable for any loss or damage caused to the Client;
(c) The Client holds the benefit of the Client’s insurance of the Goods on trust for PC Onsite, and must pay to PC Onsite the proceeds of any insurance in the event of the Goods being lost, damaged, or destroyed;
(d) If the Client sells, disposes, parts with possession of the Goods or does anything to the Goods which changes its form, then the Client must hold the proceeds of any such act on trust for PC Onsite, and if the Goods are sold, must pay, or deliver the proceeds to PC Onsite on demand; and
(e) The Client shall not charge or grant an encumbrance over the Goods, nor grant nor otherwise give away any interest in the Goods, while they remain PC Onsite’s property; and
(f) PC Onsite reserves the right to commence proceedings to recover the Charges, notwithstanding that ownership of the Goods has not passed to the Client.
14. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
14.1. The Client will provide such information and do such acts and execute such further documents as in the opinion of PC Onsite may be necessary or desirable to enable PC Onsite to perfect under the PPSA the security interest created by these terms and conditions, with a security interest taken in all Goods previously supplied by PC Onsite to the Client (if any) and all Goods that will be supplied in the future by PC Onsite to the Client.
14.2. PC Onsite may do all things which it thinks desirable to remedy any default by the Client or otherwise protect the security interest created by these terms and conditions.
14.3. The Client irrevocably appoints PC Onsite to be the Client’s attorney to do anything which PC Onsite agrees to do under these terms and conditions and anything which the attorney thinks desirable to protect PC Onsite’s interests under these terms andconditions and the Client ratifies anything done by an attorney under this clause. The Client agrees sections 114(1)(a), 133 and134 of the PPSA shall not apply to these terms or the security under these terms and conditions.
14.4. The Client waives the Client’s right to receive a copy of the verification statement under section 148, confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms and conditions.
14.5. The Client agrees that none of the Client’s rights as debtor under sections 116, 119, 120(2), 121, 125, 126, 127, 129,131 and 132 of the PPSA shall apply to these terms and conditions.
14.6. The Client also agrees, where the Client has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
14.7. The Client must not change the Client’s name without first notifying PC Onsite of the new name not less than 7 Business Days before the change takes effect.
15. SECURITY AND CHARGE
15.1. The Client acknowledges and accepts that by accepting these terms and conditions, it charges all its rights, title, and interest (whether joint or several) in any land, realty, or other assets capable of being charged (including, but not limited to, the payment of any money), owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions.
15.2. The Client indemnifies PC Onsite from and against all PC Onsite’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PC Onsite’s rights under this clause.
15.3. The Client irrevocably appoints PC Onsite and each director of PC Onsite as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
16. INTELLECTUAL PROPERTY
16.1. All right, title, and interests in and to all Intellectual Property (included developed Website Services) always will remain the exclusive property of PC Onsite.
16.2. All Flash, PHP, Java Script, HTML and Dynamic HTML coding and other supplied code (if any) remains the Intellectual Property of PC Onsite. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
16.3. The Client agrees to indemnify PC Onsite against any claims by third parties for any breach of the Intellectual Property caused by the Client. Furthermore, where the Client has supplied any Intellectual Property to PC Onsite, the Client warrants that the supply of such Intellectual Property does not breach any patent, trademark, design, or copyright.
16.4. Notwithstanding anything herein, the Intellectual Property rights in PC Onsite’s Services do not vest in the Client and there is no assignment of these Intellectual Property rights to the Client. PC Onsite hereby grants to the Client an irrevocable, non-exclusive, and non-transferable licence to use and reproduce the Services for the purposes of this Contract only, and solely for the operation of the Client’s business however, the Client shall not use nor modify, re-use, or re-distribute copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to PC Onsite, unless express approval is given in advance by PC Onsite or their subcontractors (if applicable). Such license shall terminate on default of payment or any other terms of this Contract by the Client.
16.5. All design work where there is a risk that another party makes a claim, should be registered by the Client with the appropriate authorities prior to publishing or first use or searches and legal advice sought as to its use. PC Onsite shall not be held responsible for any or all damages resulting from such claims.
17. DEFAULT
17.1. In any event, PC Onsite reserves the right to charge the Client interest in respect of the late payment of any sums due under this Contract, which will be calculated and cumulated monthly, at the rate of five percent (5%) per year above the cash rate from time to time of the Reserve Bank of New Zealand, from the due date until receipt of payment.
17.2. If the Client owes PC Onsite any money the Client shall indemnify PC Onsite from and against all costs and disbursements incurred by PC Onsite in recovering the debt, such as, any legal costs on a solicitor and own client basis or internal administration fee (which may include bank dishonour charges that PC Onsite has incurred from their banking institute for dishonours or chargebacks) or any collection fees if a debt is passed to a recognised Debt Collection Recovery Agency.
17.3. PC Onsite shall be entitled to suspend or cancel all or any part of this Contract and/or any other contract or contracts with the Client, in addition to its other remedies, upon the happening of any of the following events of default:
(a) If any amounts payable by the Client to PC Onsite are overdue; or
(b) If the Client breaches, or fails to comply or repudiates, any obligation under this Contract or any other subsequent contract with PC Onsite; or
(c) The Client intimating that they will not pay any sum by the due date; or
(d) The Client dies, becomes insolvent or subject to bankruptcy laws, calls a meeting of creditors, or if a company – enters into an arrangement with creditors or makes an assignment/compromise for the benefit of its creditors, or receivers, managers, liquidations (provisional or otherwise), administrators or any similar party is appointed in respect of the Client (or any asset of the Client), has any winding up petition presented against, or ceases to carry on business; or
(e) If the Client ceases or threatens to cease carrying on business; or
(f) If the ownership or effective control of the Client is transferred, or the nature of the Client’s business is materially altered.
17.4. Upon cancellation of this Contract all sums owing by the Client to PC Onsite shall become immediately due and payable.
17.5. Notwithstanding clause 17.3 and without prejudice to any other remedies PC Onsite may have, if at any time the Client is in breach of any obligation (including those relating to payment, whether or not the payment is due to PC Onsite) PC Onsite may suspend or terminate the provision of Services to the Client, (this includes but is not restricted to, withholding domain codes, passwords and Goods, and/or blocking or restricting public and Client access to the Website, or removing the Website from the web completely) and any of its other obligations under the terms and conditions. PC Onsite will not be liable to the Client for any loss or damage the Client suffers because PC Onsite has exercised its rights under this clause.
18. CANCELLATION
18.1. By PC Onsite:
(a) May occur at any time before the Services are carried out by giving 7 Business Days written notice; and
(b) PC Onsite will repay to the Client any money paid by the Client for the Services, less any amounts owing to PC Onsite for any Goods purchased on the Client’s behalf where credits or refunds cannot be obtained from PC Onsite’s third- party suppliers; and
(c) PC Onsite shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2. By the Client:
(a) Prior to Delivery of the Services, by giving no less than 7 Business Days written notice, the Client remains liable for any costs incurred by PC Onsite (including, but not limited to, loss of profit) up to the time of cancellation; or
(b) Where the Client cancels the Services that have already commenced:
(i) The initial notification may be by telephone or email but must be confirmed in writing within 7 Business Days; and
(ii) The Client shall be invoiced for all work completed up until the date of cancellation. Any deposit paid prior to the commencement of the Services will be forfeited in lieu of monies due, however, the Client remains liable for any monies due over and above any deposit paid; or
(iii) At PC Onsite’s discretion, where failure of clause 18.2(b)(i) occurs, the Client may be required to pay the full quoted Charges.
18.3. Fixed Term Plans
(a) Where this Contract relates to a fixed term Plan, all payments shall fall due as per the payment schedule; and
(b) To terminate the fixed term Plan on, or after, the current annual term, the Client must give PC Onsite not less than 30 Business Days’ notice prior to the current anniversary date of this Contract; and
(c) The Services will terminate at the end of the then current annual term. If the Client does not terminate the Services on expiry of the current annual term, the Services shall revert to a month-by-month basis charge until otherwise agreed by both parties. Any additional Services shall become due and payable until notice (as herein) is received.
19. PRIVACY POLICY
19.1. The Client authorises PC Onsite to collect, retain and use Personal Information about the Client for the following purposes:
(a) Assessing the Client’s creditworthiness;
(b) Administering the Client orders;
(c) Receiving information from one or more credit reference agencies, concerning the credit history of the Client;
(d) Disclosing credit-related information to, and using the credit services of, one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Client’s credit worthiness.
19.2. For the avoidance of doubt, all authorities given above are continuing authorities, to apply throughout the duration of the term of PC Onsite and Client’s trading relationship.
19.3. The Client, if an individual, has a right of access to Personal Information about the Client held by PC Onsite and may request correction of the information.
19.4. For the purposes of this clause 19, Personal Information has the meaning given to it in the Privacy Act 2020.
20. CONFIDENTIALITY
20.1. Each party agrees to treat all information and ideas communicated by the other party confidential and both parties agree not to divulge any such information to any third-party, without the other party’s written consent.
20.2. All proposals or quotations, together with plans and specification information contained therein, provided by PC Onsite to the Client is done so on a ‘commercial in confidence’ basis. The Client agrees not to reproduce or provide any said information in any manner to any third-party without first seeking, prior written approval from PC Onsite.
21. DISPUTE RESOLUTION
21.1. If a dispute arises between the parties to this Contract, then either party shall send to the other party a notice of dispute in writing detailing the grounds of said dispute. Within 14 Business Days after service of a notice of dispute, the parties shall use their reasonable efforts, to attempt to resolve the dispute (each party shall bear their own costs associated with any mediation method). If the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by registered mail to
the other party stating that such dispute is now to be referred to arbitration in accordance with the Arbitration Act 1996 or any other method or remedy available at law.
21.2. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect and proprietary or trade secret right.
21.3. Furthermore, the Client agrees not to contract any third party to replace PC Onsite as their provider of the Services to be supplied under this Contract until the dispute resolution process in clause 21.1 has been completed, and then only if arbitration has found against PC Onsite in its determination, and PC Onsite is unable or unwilling to resolve, rectify or correct the issues that have led the arbitrator to find against PC Onsite.
22. NOTICES
22.1. If either party gives or is required to give notice to the other party under this Contract, it must be;
(a) In writing;
(b) Directed to the recipient’s address for service of notices specified in the quotation or, proposal (Contract details) or as advised from time to time; and
(c) Hand-delivered or sent by pre-paid post or by email to that address.
22.2. Notice is taken as received when:
(a) A notice given in accordance with clause 22.1 is taken to be received; or
(b) If hand-delivered on delivery; or
(c) If sent by prepaid post, 5 Business Days after the date of posting for local or regional mail and 10 Business Days after the date of posting for international mail; or
(d) If sent by registered mail, immediately upon signed receipt thereof; or
(e) If sent by email, at the time denoted in an automated receipt notification received by the sender (in the absence of manifest error or tampering) or, if that function is not enabled, upon acknowledgement of receipt by the other party by return email or otherwise).
23. CONSUMER GUARANTEE ACT 1993
23.1. If the Client is acquiring Services 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 Services by PC Onsite to the Client.
23.2. If the Client is a consumer within the meaning of the Consumer Guarantees Act 1993, this provision constitutes a “Repair Notice” given under this legislation and the Client acknowledges that:
(a) The repair of equipment may result in the loss of files stored on the hard drive, etc., (“User-Generated Data”). It remains the Client’s responsibility to back-up any User-Generated Data, which the Client considers to be important, valuable, or irreplaceable, prior to submitting the equipment to PC Onsite for repair; and
(b) Equipment presented for repair may be replaced by, or repaired with, refurbished Goods of the same type rather than being repaired.
24. ASSIGNMENT
24.1. The Client shall not assign, sub-license or otherwise transfer this Contract or any part of it to any other person without the prior written consent of PC Onsite.
24.2. PC Onsite may assign (including but not limited to, subcontracting out any part of the Services), encumber, declare a trust over or otherwise deal with its rights under this Contract without the Client’s consent and the Client must do, and must ensure, that the Client’s personnel do anything necessary (including execute any document), that PC Onsite may reasonably require to give full effect to this clause, nonetheless, in doing so PC Onsite shall not be relieved from any liability or obligation under this Contract.
24.3. Notwithstanding clause 24.1 any change to the Client’s business structure or ownership must be notified in writing to PC Onsite within 14 Business Days of any proposed change, which includes the likes of changes in the Client’s address details, phone or change of trustees (if applicable), etc. If an ownership change does occur, the new owners will need to complete a fresh credit application, if a credit account is still to be operational. The Client shall be liable for any loss incurred by PC Onsite, because of the
Client’s failure to comply with this clause 24.3.
25. FORCE MAJEURE
25.1. Neither party shall be liable if a Force Majeure event occurs:
(a) The obligations of a party under this Contract will be suspended to the extent that it is wholly or partially precluded from complying with its obligations under this Contract by Force Majeure; and
(b) A party affected by Force Majeure must notify the other party as soon as practicable of the Force Majeure and the extent to which that party is unable to comply with its obligations; and
(c) If a failure or delay in performance exceeds 60 Business Days, either party may immediately terminate this Contract by written notice to the other party.
25.2. Nothing in clause 25.1 shall excuse payment of any amount owing due or which becomes due under the terms of this Contract.
26. MISCELLANEOUS
26.1. If any term or provision of this Contract is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms and conditions.
26.2. The legality, construction and performance of this Contract shall be governed by the laws of New Zealand. The Client agrees that any dispute arising from the Contract between the two parties that cannot reasonably be resolved by mediation shall then be litigated only, by the jurisdiction of the Courts of New Zealand.
26.3. PC Onsite shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by PC Onsite, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by PC Onsite of these terms and conditions, caused by any failure by the Client to comply with their obligations under this Contract, or that arise from any claim relating to the Goods or Services by
any person that the Client authorises to use the Goods or Services, or where due to server downtime or programming errors (alternatively PC Onsite’s liability shall be limited to damages which under no circumstances shall exceed the Charges of the supply for Goods and Services).
26.4. The Client acknowledges and accepts that PC Onsite may from time to time amend their general terms and conditions and for disclosure purposes shall do so by, in writing to the Client or alternatively by publishing the updated terms and conditions on PC Onsite’s Website at http://www.pconsite.co.nz giving at least 1 months’ notice before they take effect. However, if PC Onsite needs to make changes, as soon as possible, for regulatory or legal reasons, PC Onsite may be unable to meet that timescale and in those circumstances, PC Onsite will advise the Client as soon as reasonably practical, and the changes will take effect from the date upon which PC Onsite notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for PC Onsite to provide Goods or Services to the Client.
27. DEFINITIONS AND INTERPRETATION
27.1. In this Contract, unless the context otherwise requires capitalised terms have the meaning set out below:
(a) “Business Days” means a day on which banks are open for business in New Zealand other than a Saturday, Sunday, or public holiday.
(b) “Charges” means the Charges due under this Contract for the supply of Services as agreed between PC Onsite and the Client and (if applicable) shall include any GST payable.
(c) “Client” means the person/s, entities (including but not limited to, partnerships and/or a trust and where applicable shall include the Client’s executors, administrators, successors and permitted assigns) or any person acting on behalf of and with the authority of the Client requesting PC Onsite to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation.
(d) “Confidential Information” means any information:
(ii) Relating to this Contract;
(iii) Relating to a quotation, order or proposal or its contents;
(iv) Relating to a Client of PC Onsite;
(v) Disclosed by either party to the other party on the express basis that such information is confidential; or
(vi) Which might reasonably be expected by either party to be confidential in nature.
Provided that, where information relates exclusively to one party, nothing in this Contract will require that party to maintain confidentiality in respect of that information.
(e) “Contract” means this Contract, inclusive of its terms and conditions contained herein, its schedules and annexures or any quotation, proposal, invoice, or document that forms part thereof and/or is deemed to be supplementary to this Contract.
(f) “Force Majeure” means an event outside the reasonable control of either party, including an act of God, earthquake, adverse weather conditions, flood, storm, fire, explosion, war, rebellion, terrorism, strike, lock-out, industrial action national or global epidemics or pandemic and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government quarantine restrictions for Goods or individuals.
(g) “GST” means Goods and Services Tax, as defined within the Goods and Services Tax Act 1985.
(h) “Intellectual Property” means and includes (whether invisible, electronic or any other form) all brands, contracts, goodwill, logos, formulae, techniques, know-how, specifications, designs, drawings, copyright, patents, and trademarks (if any) whether registered or not, business strategies, confidential business information including market and marketing strategies, business contracts.
(i) “Personal Information” means information about an identifiable individual by ways of their name, address, D.O.B., occupation, driver’s licence details, electronic contact type details, such as, email, IP Address, Facebook, or Twitter, or next of kin and any other contact information (if applicable) and were deemed relevant shall include any previous credit applications or credit history details. By the nature of such information, it shall always be considered, Confidential Information.
(j) “PPSA” means Personal Property Securities Act 1999.
(k) “Prohibited Content” means any content on any advertising media that:
(i) Is, or could reasonably be, in breach of the Broadcasting Act 1989; the Fair Trading Act 1986; or any other applicable law or applicable industry code; or
(ii) Contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(iii) Is, or could reasonably be, in breach of any person’s Intellectual Property Rights (including, but not limited to, the distribution of music files or any other material in which the Client does not own the copyright).
(l) “Services” means all Goods (which includes any content, files, information, printed or virtual material, data, hardware, software or applications (whether supplied from a third party software development company or where custom developed or programmed for the Client), brands, designs, images, graphics, pictures, trademarks, manuals, and other associated documentation and/or goods, accessories or parts) or Services (which includes any advice or recommendations, consultancy, hosting (which includes virtual server hosting, website hosting, e-mail hosting, etc.), monitoring, data back-up or storage, design and/or website maintenance, brands, designs, project management work, brand integration, strategising and
analytical services, technical service, support and training, repairs, or installation of Goods, etc.) supplied by PC Onsite to the Client, at the Client’s request, from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
(m) “Serviced Premises” means the location nominated by the Client at which PC Onsite is to provide the Services to the Client.
(n) “SNT” means any Social Network Tool being a social media platform and/or application which is accessible on the internet through the World Wide Web, and which provides multimedia content via a graphical user interface (including, but not limited to Facebook, Twitter, LinkedIn, Pinterest, etc.).
(o) “Software” means the programmes and other operating information (including documentation) used by a computer, tablet and/or mobile device, Applications developed for use by end users will be accessible through the Website or cloud-based applications while the business software and user data is stored on servers based at an alternative location for security and back-up purposes.
(p) “PC Onsite” means Dongning Liu trading as PC Onsite, its successors and assigns.
(q) “Website” means a location which is accessible on the Internet through the World Wide Web, and which provides multimedia content via a graphical User Interface.
27.2. In this Contract, unless the context requires otherwise:
(a) Charges: A reference to dollars or $ is to an amount in New Zealand currency;
(b) Headings: Headings shall be ignored in construing this document;
(c) Joint obligations: An obligation incurred in favour of two or more parties shall be enforceable by them jointly or severally;
(d) Parts of Contract: References to this Contract including its clauses, schedules, annexures;
(e) Plurals: This singular shall include the plural and vice versa and word importing one gender shall include every gender and a reference to a person shall include any other legal entity of whatsoever kind and vice versa;
(f) Statutory Requirements: A reference to a statute, ordinance code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments, or replacements of any of them (whether of the same or any other legislative authority having jurisdiction.
27.3. Neutral Interpretation - nothing in this Contract is to be interpreted against a party solely on the ground that that party put forward this Contract or a relevant part of it.