The following words and expressions shall have meanings hereby assigned to them except where the context otherwise requires: Native Digital Limited (“Native Digital”), "us", "we" and "our" means Native Digital Limited; "Service", means your Information Technology services provided by Native Digital to customers subscribing for the same; "Client " and "You" means the party or parties who enters into this agreement with Native Digital.
Native Digital will contract to sell and supply goods and services on these Terms and Conditions of Trade and the Credit Account Application only (together, the “Contract”). By placing or confirming an order with Native Digital, the client is accepting these Terms and Conditions of Trade, and anything to the contrary in the clients’ enquiries, orders or confirmations will not apply. The Contract supersedes any prior negotiations, agreements or undertakings between the parties and any waivers or variations to the Contract are only effective if made in writing and signed on behalf of Native Digital.
These Terms and Conditions of Trade apply to all “business customer” sales only. That is, sales to a client which acquires goods and services from Native Digital for the purposes of business use.
Orders must be in writing and addressed to Native Digital. The client may not cancel or vary an order once it has been placed or confirmed without Native Digital’s written consent. Native Digital has no obligation to enquire into the authority of any person placing orders on the client’s behalf.
No order submitted by the client shall be deemed to be accepted by Native Digital unless and until it is confirmed in writing by Native Digital’s authorised representative.
All prices quoted by Native Digital are exclusive of GST unless specified otherwise. If GST is payable, it is payable by the client. Native Digital reserves the right to alter the prices quoted in a quotation or tender provided to the client for the supply of goods or services (“Quotation”) to reflect increases or decreases in procurement costs which may have come to its notice after the date of the Quotation. In addition, Native Digital reserves the right to withdraw or amend a Quotation unless the client has given written acceptance of the Quotation to Native Digital within the time period specified in the Quotation. If no period for acceptance has been specified, the Quotation will be open for acceptance for fourteen days from the date of the Quotation.
In some instances prices provided by Native Digital within a Quotation may be calculated on the basis of a project or package of items. Variations in the scope of a project or package, or to project timescales, may affect the pricing of individual components and Native Digital reserves the right to adjust the prices contained within the Quotation accordingly.
The client must pay the price indicated on the invoice or other document or statement issued by Native Digital.
All freight, packaging and other relevant costs (if any) are charged to the client’s account as shown on the invoice.
Payment for goods and services supplied by Native Digital to the client is due in accordance with the terms stated on the relevant invoice, or as otherwise agreed in writing.
Where no payment terms are stated on the invoice, payment will be due on delivery of the goods or the provision of the services being Cash On Delivery.
If payment is not received by the invoices due date, services may be suspended or terminated. If an account is Suspended the FULL balance of the account is due before services can resume. Fees may apply for resuming suspended services.
If at any time Native Digital deems the credit of the client to be unsatisfactory, it may immediately terminate this contract or any other credit arrangements and require the client to pay the price on delivery of the goods or services. All costs and expenses of, or incurred by, Native Digital as a result of the termination and recommencement of any credit arrangement are payable by the client upon demand.
Native Digital may charge interest on any moneys which are overdue under this Contract, commencing on the due date until the date of actual payment. The interest charged will be 2.5% per month calculated on a daily basis on the overdue amount until all amounts owed by the client are paid in full. The charging of interest does not imply the granting or an extension of credit. The client agrees to pay, on demand, all costs (including legal fees) incurred by Native Digital or Native Digital’s agents relating to the recovery of any amounts payable by the client to Native Digital.
All payments by the client must be made in full and without any deduction or right of set off or counterclaim. The client agrees, however, that all moneys which Native Digital may owe the client on any account whatsoever may, at Native Digital’s option, be set off against payments due by the client to Native Digital.
Overdue accounts referred to our debt collection agency will incur all costs of collection pursuant to the Fair Trading Act, 1986.
Credit Card Chargebacks or dishonoured payments made via Automatic Payments or Direct Debits will result in immediate suspension of services.
Native Digital may at any time and without notice to the client cancel, reject, or refuse to continue providing service without providing any reason for such rejection or refusal at any time prior to, or after, offering its services. This right will not be unreasonably exercised.
Where Native Digital rejects, or refuses to continue providing service, the client will still be liable to pay any outstanding fees up to the date of termination.
The client acknowledges that Native Digital (or its suppliers) are the sole owners or licensors of all intellectual property (including business know-how, methodologies, ideas, routines, systems and processes) relating or arising (directly or indirectly) to the client; or as otherwise developed or contributed to by Native Digital (or its suppliers) in relation to any information, fault, repair or documentation that Native Digital supplies to the client, or as a result of Native Digital performing services or any other work for the client.
The client covenants that any material provided by the client to Native Digital, and the use of it by Native Digital, for the purpose of supplying goods or services does not infringe any trade mark, copyright, patent, trade secret or any other proprietary right of any third party.
Delivery of goods is deemed to be complete when made at the client’s premises or any other premises agreed to in writing by Native Digital. On delivery, the goods are at the client’s sole risk and with effect from the time of delivery, and in accordance with clause 8 of these Terms and Conditions of Trade, the client will have in place all risks insurance to cover both its interest as bailee of the goods and Native Digital’s interest as owner of the goods.
Native Digital may choose the carrier and the method of transport, unless otherwise agreed by Native Digital in writing, and it may choose to deliver by instalments and may treat each delivery as a separate Contract. Should Native Digital fail to deliver or make defective delivery of one or more instalments, this will not entitle the client to repudiate the Contract.
If Native Digital believes that the client failed not make any payment when due, then it may suspend or cancel any delivery and Native Digital shall not be held liable for non-delivery or late delivery (however caused), or failure to deliver by any specific method, means or vehicle.
In consideration of Native Digital supplying the Goods and Services on account, the Guarantor(s) personally guarantees jointly and severally payment upon demand of all monies owed by the client from time to time to Native Digital.
The Guarantor(s) agrees to indemnify us at all times against all damages, claims, costs (including all legal costs), losses and expenses which we may suffer or incur as a breach by the client of their obligations under this Contract.
The Guarantor(s) further agrees:
Title to ownership (both legal and equitable) in all goods delivered by Native Digital to the client does not pass (and the client is a bailee only in respect of those goods) until payment in full is made for all such goods and other goods supplied by Native Digital to the client. Until property has passed, the client will store all goods in such a way that they are clearly identifiable as the property of Native Digital.
Until the client has paid Native Digital in full for all goods supplied, the client may not sell (unless such sale is in the ordinary course of the client’s business), dispose of, or charge the goods and must hold or deal with the goods for and on behalf of Native Digital. However, if the goods are sold in the ordinary course of the client’s business, prior to property passing to the client, the proceeds of that sale are held by the client on trust for and on behalf of Native Digital.
Prior to the client acquiring full property in the goods, Native Digital or Native Digital’s agents may at any time enter upon any land, premises or property where it believes such goods may be to view and inspect them, and if the client has not paid for them in full retake possession of the goods.
Native Digital's services are backed by a 30 day money back guarantee. If you are not completely satisfied with our services or support within the first 30 days of your contract, you will be given a full refund of the monthly fees excluding any applicable setup fees, 3rd party services or overages.
30 days’ notice is required for cancellation of services and must be made in writing. Cancellations without notice will continue to be billed accordingly for the remainder of the notice period. All charges will cease at the end of the 30 day notice period. No part credit or refund will be issued.
If Native Digital is prevented, hindered or delayed from complying with this Contract, or supplying goods and services in accordance with this Contract, by a Force Majeure Event, Native Digital may at its discretion:
Native Digital is not liable for any loss or damage suffered by the client as a result. In this clause “Force Majeure Event” means an event beyond the reasonable control of Native Digital including, without limitation, strike, lock-out, labour dispute, act of God, war, riot, civil commotion, malicious damage, theft, compliance with a law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, difficulty or increased expense in obtaining workers, materials or transport, or other circumstances affecting Native Digital’s source of supply or means of delivery.
Native Digital specifically disclaims all terms, conditions, warranties and representations, expressed or implied by statute, common law or otherwise including, without limitation:
in relation to the goods are excluded to the fullest extent permitted by law.
Native Digital is not liable for any consequential, indirect, special or incidental damages, even if Native Digital has been advised by client of the possibility of such potential loss or damage.
If Native Digital's service to client is disrupted or malfunctions for any reason, Native Digital shall not be responsible for losses of income due to disruption of service, beyond the fees paid by the client to Native Digital for services, during the period of disruption of malfunction.
To the maximum extent permitted by the applicable laws of New Zealand, Native Digital is not liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information or other pecuniary loss, damage or injury) arising out of the use, or inability to use, any goods or services supplied by Native Digital.
Native Digital is not liable for the protection or privacy of electronic mail or other information transferred through the Internet or any other network provider or its customers may utilise.
Native Digital does not represent or warrant to the Client that the Client will receive continual and uninterrupted service during the term of this Agreement. In no event shall Native Digital be liable to the Client for any damages resulting from or related to any failure or delay of Native Digital to provide service under this Agreement if such delays or failures are due to “Force Majeure Events” or other causes beyond Native Digital's control, as defined by standard practices in the industry. Such failure or delay shall not constitute a default under this Agreement.
The Consumer Guarantees Act 1993 may apply to any services we provide to you if you acquire these services for personal, domestic or household use. If this act applies, all rights you may have under it apply in addition to the rights you may have in this agreement. Nothing in this agreement will limit or exclude your rights under this act.
The client agrees that where they and Native Digital are both in trade and that it is fair and reasonable that:
The client agrees to defend, indemnify, and hold Native Digital harmless from any physical, direct and indirect damage, economic loss or other loss or cost or expenses (including legal expenses on a solicitor and client basis), and against any claims or proceedings against Native Digital to the extent caused or contributed by the client (or any of its agents or employees) or arising from a breach of this Contract. And against any and all claims, losses, liabilities and expenses (including legal expenses on a solicitor and client basis) related to or arising out of the services provided by Native Digital to Client under this Agreement, including without limitation claims made by third parties (including customers of Client) related to any false advertising claims, liability claims for products or services sold by Client, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided hereunder.
The client and any Director(s) and/or Guarantor(s) agree that any information about them provided to Native Digital may be used by Native Digital for purposes connected with our business including but not limited to direct marketing, debt collection and credit reporting or assessment. The client and the Director(s) and/or Guarantor(s) authorise us, should it be required, to provide such information to any external agency or any party for credit information, debt collection and assessment purposes and that agency or party are hereby authorised to use and continue to use such information as part of their business services. Any personal information is held at the main business premise office of Native Digital Limited and the client and the Director(s) and/or Guarantor(s) have certain right of access and correction to their personal information under the Privacy Act 1993.
If a party considers that there is a dispute in respect of any matters arising out of, or in connection with, this Contract then that party shall immediately give notice to the other party setting out details of the dispute. The parties will endeavour in good faith to resolve the dispute between themselves within 5 Working Days of the receipt of the notice, failing which the parties will endeavour in good faith within a further 10 Working Days to appoint a mediator and resolve the dispute, time being of the essence.
Neither party will commence legal proceedings against the other except for injunctive relief before following the procedure set out above.
The client may not assign all or any of its rights or obligations under this Contract without the prior written consent of Native Digital. Native Digital is not bound by any error or omission on any invoice or other document or statement issued by Native Digital.
From time to time, third parties and/or subcontractors will be needed to preform work for clients on behalf of Native Digital Limited. The client agrees that Native Digital may engage third parties to perform such work as Native Digital deems necessary.
This Contract between Native Digital and the client is governed by the laws of New Zealand and Native Digital and the client each submit to the non-exclusive jurisdiction of the New Zealand courts.
If a provision in this Contract is illegal, invalid or unenforceable, the validity and enforceability of the remaining provisions is not affected.