1.     DEFINITIONS

1.1.          "TIGER NETWORKS" shall mean TIGER NETWORKS LIMITED, or any agents or employees thereof.

1.2.          “Customer” shall mean the Customer, any person acting on behalf of the Customer, any person holding out that they are acting on behalf of the Customer, or any person purchasing products from TIGER NETWORKS and any person or persons (jointly and severally) guaranteeing the Customer.

1.3.          “Product” and “Product(s)” shall mean all products, hardware, goods, services, software and/or advice provided by TIGER NETWORKS to the Customer and all charges for labour, freight, hire charges, insurance charges, or any fee or charge associated with the supply of Product(s) by TIGER NETWORKS to the Customer.

2.    COMPLETE TERMS

2.1.          These Terms and Conditions are the complete and only terms and conditions that apply to every sale, between TIGER NETWORKS and the Customer irrespective of any other representations that may have been made by TIGER NETWORKS the Customer hereby agrees that; there are no variations to these terms and no other agreement.

2.2.          These conditions, as set out in this document, apply to all Product and services supplied by TIGER NETWORKS and these terms are paramount. Any invoice, catalogue, advertisement or other document describing any Product(s) or services supplied by TIGER NETWORKS on terms different to these terms is of no effect and these terms prevail.

3.    COLLECTION AND USE OF INFORMATION

3.1.          The Customer authorises TIGER NETWORKS 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 Product(s)  provided by TIGER NETWORKS to any other party.

3.2.          The Customer authorises TIGER NETWORKS to disclose any information obtained to any person for the purposes set out in clause 3.1 and 16.1.

3.3.          Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities and consents for the purposes of the Privacy Act 1993.

4.    PRICE

4.1.          Where no price is stated in writing the Product(s) shall be deemed to be sold at the current Price for such Product(s) as sold by TIGER NETWORKS at the time of that supply.

4.2.          All prices provided by TIGER NETWORKS are EXCLUSIVE OF GST UNLESS OTHERWISE STATED IN WRITING.

4.3.          The actual cost of freight to the Customer shall be in addition to any price whether estimate or quote provided by TIGER NETWORKS. No Invoice is satisfied unless that amount of freight is also paid in accordance with these terms and conditions.

4.4.          The price may be increased by the amount of any reasonable increase in the cost of supply of the Product(s) that is beyond the control of TIGER NETWORKS between the date of these Terms and delivery of the Product(s).

4.5.          The minimum charge that TIGER NETWORKS will make for any service provided by TIGER NETWORKS shall be one quarter of an hour together with one travel charge.

5.    QUOTATION

5.1.          In the event that TIGER NETWORKS provides a quote for the provision of any Product or services that quote shall be effective and available for acceptance by the Customer for 7 days from the date that TIGER NETWORKS provides that quote.

5.2.          Any purported acceptance by a Customer of any quote after the expiry of that period shall be an acceptance by the Customer subject to the terms as to price as set out in this agreement.

6.    PAYMENT

6.1.          Payment for Hardware shall be made in clear funds before delivery (“the due date") or otherwise only as set out in these terms. 

6.2.          Payment for Services shall be made in clear funds immediately that the service has been rendered by TIGER NETWORKS (“the due date") unless the Customer has successfully completed an Approved Trading Account Form and been accepted (by notice in writing in accordance with the terms of that application) as the holder of an Approved Trading Account.

6.3.          Where agreed by TIGER NETWORKS in writing following a successful Approved Trading Account Application, TIGER NETWORKS may extend credit to the Customer wherein payment is to be made in full within seven (7) days or fourteen (14) days of supply, or by the 20th of the month following the date of the invoice (“the due date”), depending on the terms specified by TIGER NETWORKS.

6.4.          As a genuine pre-estimation of TIGER NETWORKS loss associated with non-payment by the Customer on the due date of any invoice an amount of liquidated damages for non-payment may be charged on any amount owing after the due date at the rate of 10% thereof per month (or part month).

6.5.          The Customer hereby irrevocably agrees to both the imposition of liquidated damages and the level of those

6.6.          The receipt by TIGER NETWORKS of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until TIGER NETWORKS is notified in writing by its bank that such a negotiable instrument has cleared.

6.7.          In the absence of a prior written agreement with TIGER NETWORKS all hardware supplied by TIGER NETWORKS must be paid for in full by the customer before dispatch or, at the sole discretion of TIGER NETWORKS, hardware may be dispatched to the customer on a “Cash on Delivery” basis or on any other basis agreed to ahead of dispatch of the hardware in writing.

6.8.          A deposit of between 10% and 50% of the full amount of any order or orders may be required to be paid ahead of the dispatch of any order.

7.    CONSUMER GUARANTEES ACT 1993

7.1.          If the Product(s) are acquired by the Customer in trade, or otherwise for business purposes, the Customer agrees that the Consumer Guarantees Act 1993 does not apply. Where the Customer supplies the Product to a person acquiring them for business purposes, the Customer agrees that it will be a term of the Customer’s contract of sale with that person that the Consumer Guarantees Act 1993 will not apply in respect of the goods.

7.2.          The Customer shall not, in relation to the supply by the Customer of the goods, make any representation or promise in relation to the goods without the prior approval in writing of TIGER NETWORKS. The Customer agrees to indemnify TIGER NETWORKS against any liability or cost incurred by TIGER NETWORKS under the Consumer Guarantees Act 1993 as a result of any breach by the Customer of the obligations contained in these Terms.

7.3.          Nothing in these Terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993, except to the extent permitted by that Act.

8.    WARRANTY

8.1.          No representation, condition, warranty or promise (expressed or implied)            other than those required by law apply to each and every sale of Product(s), including services. Product(s) are warranted free from defective workmanship and material provided that the Product(s) are unmodified in any way and are correctly installed by a qualified tradesman and subject only to normal use and service. TIGER NETWORKS may require written evidence of this, to its sole satisfaction, before acting on any warranty claim.

8.2.          No warranty shall exceed that given by the manufacturer. The warranty is limited to replacing or repairing any defective Product returned to TIGER NETWORKS in accordance with the procedure set out in these terms and conditions provided that TIGER NETWORKS is satisfied that the defects were defects in manufacture. TIGER NETWORKS shall not be liable for any financial losses or damage sustained by the Customer, including but not limited to, repair, inspection or replacement costs or any charges for hire or purchase of replacement equipment/Product.

8.3.          At no time will the liability of TIGER NETWORKS exceed the purchase price of the Product.

8.4.          The Customer acknowledges that TIGER NETWORKS is a reseller of hardware and software not a manufacturer and TIGER NETWORKS has no liability for any loss or damage directly or indirectly related to any product supplied by TIGER NETWORKS.

9.    RISK

9.1.          The Product(s) remain at TIGER NETWORKS’ risk until dispatched for delivery to the Customer. No warranty against damage or loss in transit is given. No liability for damage to or loss of Product(s) in transit is accepted.

9.2.          Delivery of Product(s) shall be deemed complete when TIGER NETWORKS gives possession of the Product(s) directly to the Customer or possession of the Product(s) is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.

9.3.          The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to TIGER NETWORKS and TIGER NETWORKS agrees, in writing, that time is of the essence.

9.4.          Deliveries of Product(s) may be made by instalments until an order is filled.

10.  RETURN OF PRODUCT

10.1.       No Product(s) shall be returned to TIGER NETWORKS without the prior written approval of TIGER NETWORKS.

10.2.       If return is accepted by TIGER NETWORKS the Customer will be allocated a Return Authorisation Number (“RA#”).

10.3.       This RA# must be quoted in all correspondence in relation to the return of Product(s).

10.4.       The return of Product may lead to a Restocking Fee being charged to the Customer.

(a)        TIGER NETWORKS reserves the right to reject products not conforming to this condition;

(b)        Return freight and insurance costs must be prepaid by the Customer,

(c)        Any refund to the Customer will be in the form of a credit note.

(d)        In relation specifically to Software:

(i)         All software that is accepted for return must be in its original packaging without the seal being broken.

(ii)        TIGER NETWORKS gives no warranty or guarantee in relation to Software performing as stated or being compatible with any particular hardware configuration, whether the manufacture of the Software does or not.

(iii)       TIGER NETWORKS will not accept Software for return by reason of it not performing as expected by the client or not being compatible with any particular hardware configuration.

(iv)       TIGER NETWORKS will use its reasonable endeavours to obtain replacement Software in the event that the Software or the Software Media is faulty.

(v)        TIGER NETWORKS will use its reasonable endeavours to inform Customers of the need to obtain Service Packs and/or Patches when TIGER NETWORKS becomes aware of the need for these.

(vi)       In the event TIGER NETWORKS is instructed to undertake the installation of an Service Pack or Patch TIGER NETWORKS accepts no responsibility for any loss or damage resulting from that installation.

11.  TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)

11.1.       The Customer hereby acknowledges that these terms of trade are a security agreement within the meaning of section 36 of the Personal Properties Securities Act 1999 (“PPSA”) and that at the sole discretion of TIGER NETWORKS the Customer may be subject to the registration of a specific security (a Purchase Money Security Interest) in the Personal Propertiy Securities Register (“PPSR”).

11.2.       The Customer waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest under the contract.

11.3.       The Customer further agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this Agreement and waives the Customers’ rights under sections 121, 125, 129, 131, and 132 of the PPSA.

11.4.       Title in all Product(s) supplied by TIGER NETWORKS passes to the Customer only when the Customer has made payment in full for all Product(s) and of all other sums due to TIGER NETWORKS by the Customer on any account whatsoever.

11.5.       Until all sums due to TIGER NETWORKS by the Customer have been paid in full, TIGER NETWORKS has a security interest in all Product(s).

11.6.       If the Product(s) are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly or installation process by the Customer or any third party, title in the Product(s) shall remain with TIGER NETWORKS until the Customer has made payment for all Product(s), and where those Product(s) are mixed with other property so as to be part of or a constituent of any new Product(s), title to these new Product(s) shall deemed to be assigned to TIGER NETWORKS as security for the full satisfaction by the customer of the full amount owing between TIGER NETWORKS and Customer.

11.7.       If the Product(s) are sold by the Customer TIGER NETWORKS shall have a security interest in any goods purchased with the proceeds of sale or in the proceeds themselves. Such security interest will be perfected by registration by TIGER NETWORKS.

11.8.       The Customer hereby gives an irrevocable authority to TIGER NETWORKS or any person appointed by TIGER NETWORKS for that purpose, to enter any premises occupied by the Customer or on which Product(s) are situated at any reasonable time after default by the Customer or before default if TIGER NETWORKS believes on reasonable grounds that a default is likely, or that the Product is at risk (as that term is defined in the Credit Repossession Act 1997) and to remove and repossess any Product(s) and any other property to which Product(s) are attached or in which Product(s) are incorporated.

11.9.       TIGER NETWORKS shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded.

11.10.     TIGER NETWORKS may either resell any repossessed Product(s) and credit the Customer's account with the net proceeds of sale (after deduction of all repossession, storage, selling, recovery and other costs) or may retain any repossessed Product(s) and credit the Customer's account with the invoice value thereof less such sum as TIGER NETWORKS reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and recovery costs.

11.11.     The following shall constitute defaults by the Customer:

(a)        Non payment of any sum by the due date.

(b)        The Customer intimates that it will not pay any sum by the due date.

(c)        There is a material change in the control or ownership of the Customer.

(d)        Any material adverse change in the financial position of the Customer.

(e)        Any Product(s) are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Product(s).

(f)         Any Product(s) in the possession of the Customer are materially damaged while any sum due from the Customer to TIGER NETWORKS remains unpaid.

(g)        The Customer or a Guarantor is bankrupted or put into liquidation or a receiver is appointed to any of the Customer's assets or a landlord distrains against any of the Customer's assets.

(h)        A Court judgment is entered against the Customer or a Guarantor and remains unsatisfied for seven (7) days.

12.  PAYMENT ALLOCATION

12.1.       TIGER NETWORKS may in its discretion allocate any payment received from the Customer towards any invoice that TIGER NETWORKS determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by TIGER NETWORKS, payment shall be deemed to be allocated in such manner as preserves the maximum value of TIGER NETWORKS purchase money security interest in Product(s).

13.  DISPUTES

13.1.       No claim relating to Product(s) will be considered unless made within forty-eight (48) hours of delivery.

13.2.       All disputes in relation to any dealings between TIGER NETWORKS and the Customer must at first instance be dealt with by mediation or arbitration at the discretion of TIGER NETWORKS.

13.3.       Nothing in clauses 13.2 shall apply in the event that TIGER NETWORKS has terminated the arrangement with the Customer for breach.

14.  PERSONAL GUARANTEE OF COMPANY DIRECTORS

14.1.       If the Customer is a company or trust then, in consideration for TIGER NETWORKS agreeing to supply Product(s) and/or grant credit to the Customer, the director(s)/trustee(s), jointly and severally personally undertake, as principal debtors, to TIGER NETWORKS to make, without requirement for separate demand, the prompt and full payment of any and all monies (without any set off or deduction) now or hereafter owed by the Customer to TIGER NETWORKS and further, to indemnify TIGER NETWORKS against the costs of any recovery action.

15.  CANCELLATION

15.1.       TIGER NETWORKS shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Product(s) to the Customer if the Customer fails to pay any money owing after the due date or the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.

15.2.       Any cancellation or suspension of this agreement shall not affect TIGER NETWORKS’ claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer's obligations to TIGER NETWORKS under this contract.

15.3.       In the event of termination for any reason the Customer shall immediately, at its own cost, return all Product(s) not paid for to a location specified by TIGER NETWORKS.

 

16.  COSTS OF COLLECTION

16.1.       In the event any recovery action is deemed necessary by TIGER NETWORKS in relation to a Customer, that Customer (and the Guarantors, if any) will be liable for the full costs of that recovery action, including debt collection costs and charges, investigation costs and the solicitor and own client costs of TIGER NETWORKS.

17.  COPYRIGHT

17.1.       All content, including but not limited to, every image, all text, every logo, symbol or trademark in any TIGER NETWORKS catalogue, advertising or promotional material, or on any TIGER NETWORKS internet website is subject to copyright and trademark protected and is the intellectual property of the author and may not be copied, used or reproduced, except with the copyright holders’ express written consent.

18.  MISCELLANEOUS

18.1.       TIGER NETWORKS shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.

18.2.       Failure by TIGER NETWORKS to enforce any of the terms and conditions contained in these Terms shall not be deemed to be a waiver of any of the rights or obligations TIGER NETWORKS has under this contract.

18.3.       If any provision of these Terms shall be determined to be invalid, void or illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

18.4.       The client shall not assign all or any of its rights or obligations under these Terms without the written consent of TIGER NETWORKS.

19.  ACKNOWLEDGEMENT AND ACCEPTANCE OF THESE TERMS BY THE CUSTOMER

19.1.       The Customer shall acknowledge receipt of these terms in writing before any trading relationship shall commence between the Customer and TIGER NETWORKS.

19.2.       In any event, any instructions received by TIGER NETWORKS from the Customer for the supply of Product(s) after dispatch of these terms shall constitute a binding contract and acceptance of terms and conditions contained herein.

19.3.       The Customer further acknowledges that TIGER NETWORKS may alter or replace any or all of these terms as it considers appropriate in its sole discretion at any time.

19.4.       TIGER NETWORKS will use its reasonable endeavours to provide up to date versions of the terms of trade to the Customer as soon as reasonably possible after amendment.