Standard terms and Conditions of sale

ITL Technologies Ltd – Terms of Trade

These Terms of Trade apply to all Works supplied by ITL Technologies Ltd (“ITL”).

1. Definitions

“Client” means the person or entity requesting ITL to provide the Works, including authorised representatives, successors and permitted assigns.

“Contract” means these terms and conditions together with any other signed contract document or quotation, service/material order or invoice.

“ITL” means ITL Technologies Limited, New Zealand company number 307827.

“Materials” has the meaning given in clause 7.7.

“Works” means all services, consultancy, design and/or materials supplied by ITL.

“Worksite” means the address designated in writing by the Client for delivery or supply of the Works.

“Price” means the amount payable for the Works plus GST (if applicable) under clause 5.

2. Acceptance

2.1 By placing an order for, or accepting delivery of, any Works supplied by ITL, the Client is deemed to have accepted these terms and conditions and is immediately bound by them, jointly and severally where applicable.

2.2 Electronic signatures are valid and binding, provided they comply with section 226 of the Contract and Commercial Law Act 2017 or any other applicable regulations.

2.3 Any advice or recommendations from ITL regarding the Works or Materials are given in good faith. If the Client chooses not to follow such advice, written authorisation must be provided to proceed. ITL may, at its sole discretion, refuse to carry out an order for the Works. ITL is not liable for any loss or damage resulting from Works carried out contrary to its recommendations.

2.4 No changes or amendments to this Contract are effective unless made in writing and agreed to by both the Client and ITL.

3. Privacy Policy

3.1 Personal Information
ITL treats all personal data held or processed about the Client as confidential. ITL will handle such information in accordance with the Privacy Act 2020 and notify the Client of any data breaches that may cause serious harm. Personal Information will only be disclosed with the Client’s written consent or if required by law.

3.2 Collection and Use
ITL may collect personal data, including contact details, identification, credit history, or other relevant information, to:
(a) assess the Client’s creditworthiness;
(b) enforce its rights under this Contract; and
(c) provide or market ITL’s products and services.
ITL may share such information with credit providers or agencies for credit assessment or debt recovery purposes.

3.3 Client Rights
The Client may request access to, correction of, or deletion of Personal Information held by ITL, subject to legal or contractual obligations. Privacy complaints may be submitted via email; ITL will respond within seven (7) days and aim to resolve within twenty (20) days. If unsatisfied, the Client may contact the Privacy Commissioner.

4. Accuracy of Information

The Client acknowledges that ITL has taken reasonable care to provide accurate information in its communications, documentation, and literature related to the Works. However, ITL will not be liable for any errors, omissions, or inadvertent mistakes in the formation, administration, or presentation of this Contract or in any accompanying materials, unless directly caused by ITL’s negligence or wilful misconduct. Such errors or omissions do not entitle the Client to treat this Contract as invalid or repudiated.

5. Price and Payment

5.1 Price
(a) ITL may advise the Client of the Price from time to time by providing a price list, quote, or estimate for the Works. If no quotation or Price is advised or agreed, the Price will be charged by ITL in accordance with its normal business practices.
(b) The Price excludes Goods and Services Tax (GST), which the Client must pay in addition to the Price at the same time and in the same manner as payment for the Price.

5.2 Quotation
Where a quotation has been given by ITL, the Price shall be:
(a) ITL’s quoted Price, including any price agreed in a signed supplemental contract, which shall be binding provided the Client accepts the quotation in writing within thirty (30) days, or such other time frame as specified by ITL in the quote;
(b) If there are any inconsistencies between a quotation and the terms of this Contract, the terms of the quotation will apply.

5.3 Price Adjustments
ITL may change the Price if:
(a) the Client requests a variation to the Works or Materials; or
(b) additional Works are required due to hidden or unforeseen difficulties discovered at the Worksite; or
(c) there is an increase in labour or material costs for the supply of the Works that is beyond ITL’s reasonable control, in which case the Price shall be increased to account for the increase in these costs.

5.4 Variations
(a) All variations to the Works or Materials must be agreed in writing between the parties and will be priced and invoiced based on ITL’s written quotation. If ITL considers that any instruction or direction from the client constitutes a variation to the scope of ITL’s obligations under the Contract, then ITL will not be obliged to comply with such instructions or direction unless agreed in writing and in accordance with this clause 5.4(a).

(b) If ITL considers that the Client’s instructions constitutes a variation, ITL shall issue a variation request and the Client must respond to this variation request in writing within ten (10) working days. If no response is received, ITL may add the variation cost to the Price, such cost will be charged by ITL in accordance with its normal business practices. Payment for all variations is due in full upon completion of the Works.

5.5 Payment Timing
Payment of the Price is due in full as follows:
(a) twenty (20) days following the end of the month in which the invoice is issued; or
(b) in accordance with any approved progress payment schedule agreed in writing between ITL and the Client.

5.6 Payment Method
All payments must be made via electronic/on-line banking to the account specified by ITL.

5.7 Deductions or Disputes
The Client shall not withhold, deduct, or reduce payment of any invoice for any sums it believes ITL owes, except where the request is a claim made under the Construction Contracts Act 2002. Nothing in this clause prevents the Client from disputing any invoice, provided payment of undisputed amounts is made on time.

6. Delivery and Completion of Works

6.1 ITL will take all reasonable steps to commence the Works promptly once the necessary arrangements have been made.

6.2 The start and completion dates for the Works may be adjusted if circumstances beyond ITL’s control cause delays. This includes, but is not limited to, situations where the Client:
(a) has not made required selections;
(b) has not prepared the Worksite for the Works; or
(c) has not informed ITL that the Worksite is ready.

6.3 ITL may deliver the Works in stages or separate instalments. Each stage will be invoiced and payable according to these Terms of Trade.

6.4 Any timelines provided by ITL are indicative only and do not form a guarantee. ITL is not responsible for any losses resulting from delays. Both ITL and the Client agree to work together to facilitate timely delivery. If delays are caused solely by the Client, ITL may charge a reasonable fee for rescheduling the Works and/or for storage of Materials.

7. Client Obligations, Installation and Risk

7.1 Transfer of Risk
(a) If ITL retains ownership of the Materials under clause 12:

• Where ITL is supplying Materials only, all risk passes to the Client upon delivery. Delivery is deemed to occur when either:
  (i) the Client or their nominated carrier takes possession of the Materials at ITL’s premises; or
  (ii) the Materials are delivered to the Client’s nominated address by ITL or ITL’s carrier, even if the Client is not present. The cost of delivery may be included in the Price at ITL’s discretion.
• Where ITL is supplying and installing Materials, all risk passes to the Client upon completion of installation.

7.2 Installation Safety and Hazardous Substances
If ITL reasonably considers the Client’s Worksite is unsafe due to structural defects, asbestos, or other hazards, installation shall be delayed until it is safe. The Client is responsible for safe removal of asbestos or other toxic substances and indemnifies ITL for any related costs. Any works undertaken to make the property suitable, or additional Materials supplied, shall be treated as a variation and charged in addition to the Price.

7.3 Responsibility for Materials
ITL is responsible only for Materials it supplies. Any failure of other parts or previously installed goods is the Client’s responsibility, and the Client indemnifies ITL against any resulting loss or damage. ITL is not liable for damage or performance issues caused by improper use, maintenance, or deviations from manufacturer recommendations.

7.4 Reliance on Client Information
ITL relies on the accuracy of plans, specifications, and information provided by the Client. ITL is not responsible for losses or costs resulting from inaccuracies in this information.

7.5 Storage at Worksite
Where Materials or tools are required to be stored on-site, the Client must provide a safe area and take reasonable steps to protect items from theft, damage, or destruction. Any loss or damage to stored items is the Client’s responsibility.

7.6 Interference, Other Trades, and Surface Restoration
The Client warrants that no other tradespeople will interfere with ITL’s Works or Materials. ITL is not liable for costs, damages, or losses arising from such interference. ITL is also not responsible for any works required to restore surfaces affected by the installation, such as painting, carpentry, or re-sealing.

7.7 Title to Materials

Ownership of all materials, equipment, or goods supplied by ITL (“Materials”) remains with ITL until the Client has paid in full for all Materials and any other amounts owing to ITL under this Contract or any other agreement. Until ownership passes, the Client holds the Materials as bailee for ITL, must store and protect them to clearly identify ITL’s ownership, and must return them to ITL immediately upon request unless they have become fixtures. The Client holds the benefit of any insurance relating to the Materials on trust for ITL and must pay any proceeds to ITL if the Materials are lost, stolen, damaged, or destroyed. The Client must not sell, dispose of, charge, encumber, alter, or part with possession of the Materials except in the ordinary course of business and for full market value, with any proceeds held on trust for ITL and payable on demand. ITL may enter any premises where the Materials are kept to inspect or recover them, may recover possession of Materials in transit whether or not delivery has occurred, and may commence proceedings to recover payment for the Materials or any other sums owing even if ownership has not passed. Risk in the Materials may pass to the Client under clause 7.1 even though ownership remains with ITL.

8. Worksite Access and Underground Works

8.1 The Client must ensure clear and safe access to the Worksite and provide all necessary facilities for ITL to carry out the Works. ITL is not responsible for incidental damage to the site unless caused by ITL’s negligence.

8.2 The Client must be present at the Worksite when reasonably requested by ITL.

8.3 Worksite inductions:
(a) Any inductions required by the Client during working hours are chargeable;
(b) Where ITL controls the Worksite, all visitors must complete ITL’s induction process.

8.4 If underground works are required, the Client must identify, mark, and advise ITL of all underground services prior to the commencement of the Works. ITL is indemnified against any loss, damage, or cost arising from contact with underground services that were not identified or properly marked by the Client.

9. Compliance with Laws and Standards

9.1 ITL will comply with all laws, regulations, bylaws and applicable standards that are directly relevant to the Works to the extent they apply to the services and materials provided by ITL. The Client is responsible for ensuring that the site, instructions, information and any works or materials not provided by ITL comply with all applicable legal and safety requirements.

9.2 Without limiting clause 9.1, ITL will carry out the Works in accordance with:
(a) the Building Act 2004 (including any amendments or replacement legislation), to the extent applicable to ITL’s scope of the Works; and
(b) any current and applicable Australian and/or New Zealand Standards relevant to the Works at the time they are performed.

9.3 ITL is not responsible for any failure to comply with laws or standards arising from:
(a) inaccurate, incomplete or misleading information provided by the Client or third parties;
(b) site conditions that differ from those disclosed to ITL;
(c) works, designs, specifications or materials supplied by others; or
(d) directions given by the Client that are contrary to applicable laws or standards.

10. Security Interest under the PPSA

10.1 By agreeing to these terms in writing, the Client acknowledges that this Contract creates a security agreement under the Personal Property Securities Act 1999 (“PPSA”), and that ITL has a security interest in:
(a) all Materials supplied by ITL in the past or to be supplied in the future; and
(b) all proceeds arising from the sale or disposal of such Materials.

10.2 The Client must:
(a) provide any documents, information, or assistance reasonably requested by ITL to enable it to register, maintain, or update any financing statements or financing change statements under the PPSA;
(b) reimburse ITL for all reasonable costs and expenses (including legal fees on a solicitor-client basis) incurred in registering, maintaining, or releasing its security interest;
(c) not register, or allow any other party to register, any security interest over the Materials or their proceeds without ITL’s prior written approval; and
(d) promptly inform ITL of any significant changes in its business practices relating to the sale of Materials that could affect the nature of proceeds from such sales.

10.3 The Client agrees that certain PPSA provisions, including those relating to notification, verification statements, and debtor rights (as permitted by law), do not apply to this Contract.

10.4 The Client confirms it will ratify any steps taken by ITL to establish, maintain, or enforce its security interest under this clause.

10.5 The parties agree that nothing in sections 114(i)(a), 133 and 134 of the PPSA are excluded. The Client waives its rights under section 121, 125, 129, 131 and 132 of the PPSA.

10.6 If the Client becomes insolvent, without prejudice to any of ITL’s other rights:

(i) The Client’s rights to dispose of the Materials and any of the Client’s rights in respect of the Materials immediately          cease.
(ii) The Client must immediately return the Materials in which title has not passed under clause 7.

11. Defects, Returns and Warranties

11.1 Inspection and Notification
(a) The Client must examine all Materials upon delivery and notify ITL in writing within seven (7) days of any alleged defect, shortage, damage, or non-conformity with the quote or description. Time is of the essence.
(b) The Client must allow ITL a reasonable opportunity to inspect any Materials claimed to be defective. If the Client fails to comply, the Materials will be deemed to have been received in satisfactory condition.
(c) Where ITL, in writing, agrees that Materials may be rejected, ITL’s sole liability is limited, at its discretion, to repairing or replacing the defective Materials.

11.2 Returns
(a) Returns will only be accepted if all of the following conditions are met:
(i) the Client has complied with clause 12.1;
(ii) ITL has provided written approval for the return;
(iii) the Materials are returned at the Client’s cost within seven (7) days of delivery;
(iv) the Materials have been properly stored and handled; and
(v) all returned Materials, including packaging, brochures, and instructions, are in as-new condition.
(b) ITL may, at its discretion, charge restocking or handling fees for returned Materials.
(c) Custom-made or non-stock items are not eligible for return or credit under any circumstances.

11.3 Warranty for ITL-Supplied Materials and Works
(a) Other than as specified in this Contract, to the extent permitted by law, all warranties, conditions, liabilities or representations in relation to the quality or fitness of the Materials and/or services supplied by ITL (other than any being or giving rise to non-excludable rights under any laws of New Zealand) are excluded.

(b) Unless otherwise stated in writing, ITL provides only the following warranties:
(i) for all services, ITL warrants to the Customer that the services will be performed in a professional manner with due care and attention and in accordance with all applicable laws and regulations; and
(ii) for all Materials, the Materials will be of merchantable quality and free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the Materials.

11.4 Remedy and Replacement

(a) ITL’s liability for any defect in Materials manufactured by ITL or Works provided by ITL, if reported within twelve (12) months of delivery, will be limited to a remedy, credit, or replacement at ITL’s sole discretion.
(b) ITL will not be liable for, and the Client releases ITL from, all liability or damage caused by:
(i) improper maintenance by the Client;
(ii) failure to follow ITL’s instructions;
(iii) use outside the application specified in the quote or order;
(iv) continued use after the defect becomes apparent; or
(v) normal wear and tear, accidents, or events beyond ITL’s control (including acts of God).
(c) The warranty is void if repairs, alterations, or modifications are carried out without ITL’s prior written consent.
(d) ITL is not responsible for delays by the original manufacturer in evaluating or remedying warranty claims.

11.4 Manufacturer’s Warranty
For Materials not manufactured by ITL, the Client is entitled only to the warranty provided by the original manufacturer. ITL does not provide any additional warranties beyond those supplied by the manufacturer.

11.5 Limitation of Liability
(a) The Client agrees that to the extent permitted by law:
(i) ITL’s liability to the Client in respect of damaged or defective Goods is limited to replacement, remedy or credit under clause 11.4(a);
(ii) ITL will not be liable for, and the Client releases ITL from, all liability for any loss or damage of any kind whatsoever whether suffered or incurred by the Client or another person whether such loss or damage arises directly or indirectly from the Materials, or advice provided by ITL to the Client, and without limiting the generality of the foregoing of this clause, ITL shall not be liable for any consequential loss or damage of any kind (including without limitation any financial loss).
(iii) ITL’s overall liability to the Client or any of its officers, employees, agents, contractors or other users of the Materials arising out of or in connection with the supply of Materials and/or Works is limited to the value of the Materials and/or Works supplied to the Customer.

12. Consumer Guarantees Act 1993 and Fair Trading Act

12.1 The Client and ITL agree that where the Client is in trade, the parties agree to contract out of the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply in connection with this Contract or the Works supplied by ITL under this agreement. Nothing in this Contract shall restrict, negate, modify or limit any of the Client’s rights under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986 where the Works acquired are of a kind ordinarily acquired for personal, domestic or household use or consumption and the Client is not in trade and is not acquiring the Works for the purpose of a business.

13. Intellectual Property

13.1 All intellectual property rights, including copyright, in any designs, drawings, plans, documents, schedules of Works, or products created or developed by ITL for the Client will be vested in and remain exclusively with ITL. The Client may only use these materials for the purpose for which they were provided and supplied to the Client by ITL.

13.2 The Client warrants that any specifications, instructions, or materials provided to ITL will not cause ITL to infringe any third-party intellectual property rights, including patents, registered designs, or trademarks. The Client agrees to fully indemnify ITL against any claims, losses, damages, or costs arising from such infringement.

13.3 ITL reserves the right to use any designs, drawings, plans, documents, schedules, or products created for the Client for promotional purposes, marketing campaigns, portfolio displays, or entry into competitions, without requiring further consent or payment from the Client.

13.4 The Client must not reproduce, modify, copy, or distribute ITL’s intellectual property in any way except as expressly permitted in writing by ITL.

14. Client Default and Consequences

14.1 Overdue Payments and Interest
If the Client fails to pay any amount by the due date this will constitute a default, all money owed by the Client to ITL will become immediately due and payable, and interest accrues daily at 2.5% per month on the outstanding balance until full payment is made. ITL may, at its discretion, compound the interest monthly.

14.2 Recovery Costs
The Client agrees to indemnify ITL for all reasonable costs incurred by ITL in recovering overdue amounts, including legal fees, debt collection charges, internal administration costs, any bank fees resulting from dishonoured payments and any other costs that ITL may become liable for as a result of the Client’s default.

14.3 ITL’s Remedies on Default
If the Client defaults, ITL may suspend or cancel any unfulfilled orders and require immediate payment of all outstanding amounts. This applies if the Client will be unable to meet future obligations, including in cases of insolvency, bankruptcy, exceeding credit limits, or appointment of a receiver or similar officer over the Client or its assets.

15. Suspension and Cancellation of Works

15.1 Client Breach or Payment Default
If the Client breaches any material obligation under this Contract or fails to pay amounts due within the required timeframe, ITL may suspend or terminate the supply of Works. Suspension or termination may occur after written notice to the Client if the Client’s breach or default is capable of remedy and has not been remedied by the Client within ten (10) working days. ITL is not liable for any losses the Client may suffer as a result.

15.2 Right to Suspend Works
ITL may suspend the Works immediately if:
(a) a payment claim is unpaid by the due date and no valid payment schedule has been provided;
(b) a payment schedule amount is not paid by its due date;
(c) the Client fails to comply with an adjudicator’s determination of a governmental or regulatory body; or
(d) the Client’s actions or omissions prevent ITL from carrying out or continuing the Works.
During suspension, ITL:

• is not in breach of the Contract and is not liable for any loss or damage;
• is entitled to an extension of time to complete the Works;
• retains all rights under the Contract, including the right to terminate; and
• may charge the Client for all costs incurred in suspending and recommencing the Works as if they were a variation.

15.3 Cancellation by ITL or Client
ITL may cancel the Contract or stop delivery of Works before commencement by giving written notice. Any payments already made by the Client will be refunded, less any amounts owing for Works already completed. If the Client cancels the Works after commencement, the Client is responsible for all direct and indirect losses incurred by ITL, including lost profits and any costs already committed. Custom or non-stock items cannot be cancelled once production has started or an order has been placed.

16. Final Provisions

16.1 Authority and Capacity
Both parties warrant that they have the legal power and necessary authorisations to enter into this Contract, are not insolvent, and that this Contract creates valid and binding obligations.

16.2 Dispute Resolution
Any dispute or disagreement arising under or in connection with this Contract shall first be referred to mediation. Either party may initiate mediation by providing written notice stating the reason for the dispute. The costs of the mediator shall be shared equally. If mediation does not resolve the matter, the parties may pursue other remedies, including arbitration or legal proceedings under the Construction Contracts Act 2002 or the Arbitration Act 1996 (or any replacement legislation).

16.3 Force Majeure
Neither party is liable for delays or failures caused by events beyond their reasonable control, including natural disasters, war, terrorism, strikes, industrial action, pandemics, or government restrictions (“Force Majeure”). This does not apply to the Client’s obligation to pay ITL.

16.4 Assignment and Subcontracting
ITL may assign any of its rights or obligations under this Contract without the Client’s consent. The Client may not assign or sublicence any of its rights under this Contract without ITL’s written approval. ITL may subcontract any part of the Works but shall remain fully responsible for performance of its obligations under this Contract. The Client may not give instructions to subcontractors without ITL’s authority.

16.5 Changes to Terms
ITL may amend these terms for future contracts with the Client by providing written notice. Changes take effect when the Client accepts them or requests further Works.

16.6 Severability and Waiver
Failure to enforce any provision of this Contract does not constitute a waiver of that provision. If any term is invalid or unenforceable, the remaining provisions remain in full force. This Contract is governed by the laws of New Zealand, and the parties submit to the jurisdiction of New Zealand courts.