Product Terms and Conditions for New Zealand
1. Confirmation. This Agreement shall be binding between IM and the Customer upon the earlier of (a) acceptance of the Quote by the Customer in writing, or (b) shipment of Products to the Customer by or on behalf of IM.
2. Price. Prices charged for Products set out in the Quote are valid for seven (7) days from the Quote Date. Unless otherwise specified the Customer is responsible for shipping charges and all taxes, duties, excises and other charges associated with the sale and shipment of Products.
3. Terms of Payment. Payment terms are net, thirty (30) days. If the Customer fails to pay IM’s charges (other than disputed charges) within forty-five (45) days after the date of an invoice, the Customer shall be liable for late charges at the rate equal to the lesser of one percent (1%) per month or the highest rate legally permitted in the state where Customer is located, calculated from the date payment was due until the date payment is made and all expenses incurred in collection, including reasonable legal fees and expenses. Notwithstanding the foregoing, IM reserves the right to require part or full payment, security or a guarantee of payment in advance of any shipment. IM reserves the right to withhold or delay shipment of any order if any required payments have not been received or payment of any prior order or any of the Customer’s invoices have not been paid within the applicable payment terms with respect to any IM good and services.
4. Title and Risk. Title to Products passes to the Customer upon receipt by IM of payment in full. IM shall have a security interest in all Products until all amounts due hereunder are paid in full and Customer will upon request facilitate registration by IM on the Personal Property Securities Register of such interest in respect of the Product upon request. Risk in the Products passes to the Customer upon delivery of the Products to the Customer, or to its nominated carrier or forwarder.
5. Delivery. Unless otherwise agreed by IM in writing, delivery times, scheduled shipment dates and freight charges are estimated, and are subject to change. IM reserves the right to make partial shipments.
Use. The Customer warrants the purchase of the Products for use in association with its trade, business or profession and not for resale.
6. Return Policy. In addition to any rights under the CGA and other relevant legislation or under this Agreement: (a) IM may, at its option, accept return of non-custom Products within seven (7) days of the delivery date provided that the Product is returned in its original unopened packaging. A handling or restocking fee of between $50 and 20% of the price of the Product may apply to any Products returned. Customer is responsible for shipping charges, taxes, duties, excises and other charges associated with return of Products in accordance with this clause. IM reserves the right to be reimbursed for any promotional discounts applied on other Products purchased if any discounts were dependent on the purchase of the Products returned.
7. Claims. The Customer is responsible for inspecting the Product and must notify IM in writing within seven (7) days of delivery of any damage to the Product or incorrect supply. In the event of such damage or incorrect supply IM may, at its option and cost, accept return of the Product, and replace it with an equivalent product or refund the price paid for the Product.
8. Statutory Warranties. Despite any other clause contained in this Agreement our goods come with consumer guarantees that cannot be excluded under the CGA. Customers are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. Customers are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure, in accordance with clause 11.
9. Product Warranty. In addition to any statutory rights, the Products are subject to the manufacturers’ warranties applicable to the Products. IM makes no express or implied warranties with respect to the products, and to the fullest extent permitted by law excludes any implied warranty including any implied warranties of merchantability or fitness for a particular purpose.
10. Exclusion of Liability. To the fullest extent permitted by law, IM shall not be liable for any indirect, special or consequential losses (including but not limited to any damages calculated by reference to loss of profit, information, data, revenue, goodwill or business opportunities and damage to reputation) arising out of or in connection with this Agreement, including due to negligence, breach, wilful act or default or under an indemnity.
11. Liability. Customer is responsible for ensuring that the Product is suitable for its specific requirements and IM is not liable to the Customer for any Product ordered by the Customer that is not suitable for its specific requirements. The Customer acknowledges that where it is acquiring the Product for business purposes, the provisions of the CGA are excluded. To the extent that IM’s liability cannot be excluded or limited in the manner set out in clause 10 or otherwise in this clause, IM’s total aggregate liability (including liability due to negligence, breach, wilful act or default or under an indemnity) arising out of or in connection with this Agreement shall be limited to the total amount paid by the Customer to IM under this Agreement.
12. Force Majeure. In no event shall either party be liable for delay or inability to perform caused by acts of God, governmental actions, labour unrest, acts of terrorism, riots, unusual traffic delays or other causes beyond its reasonable control.
13. Severability. If any provision of this Agreement is found to be invalid, unenforceable or void by a court of competent jurisdiction, such provision shall be deemed to be severed from this Agreement and the remaining provisions will remain in full force and effect.
14. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior oral or written understandings, representations and warranties in respect of the packaging and delivery of Products. This Agreement applies to the exclusion of all other terms and conditions provided by the Customer including as part of a purchase order or work order. IM’s fulfilment of its obligations under this Agreement shall not constitute acceptance of those terms and conditions.
15. Governing Law and Jurisdiction. This Agreement shall be governed by, and interpreted in accordance with, the laws of New Zealand without reference to any conflict of law principles thereof. The parties submit to the exclusive jurisdiction of the courts of New Zealand.
16. Definitions. In this Agreement:
Agreement means the Quote and these terms and conditions.
GCA means the Consumer Guarantees Act 1993 as amended from time to time.
Customer means the customer set out in the Quote.
IM means Iron Mountain New Zealand Limited and its related entities.
Products means the products supplied by IM to the Customer under this Agreement.
Quote means the IM quote for the Products requested by the Customer.