Call a Geek (2012) Limited - Terms and Conditions of Trade

1. Definitions

1.1. "Call a Geek" shall mean Call a Geek (2012) Ltd its successors and assigns or any person acting on behalf of and with the authority of Call a Geek (2012) Ltd.

1.2. "Client" shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Contractor to the Customer.

1.3. "Guarantor" shall mean that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4. "Services" shall mean all services supplied by Call a Geek to the Customer and includes any advice or recommendations.

1.5. "Price" shall mean the price payable for the service as agreed between the Call a Geek and the Customer in accordance with clause 3 of this contract.

2. Goods and Services

2.1. "Goods & Services" shall mean all goods and services supplied or provided by Call a Geek to the Customer and includes any advice or recommendations.

3. Delivery

3.1. At Call a Geek's discretion delivery of the Goods shall take place when:

3.2. (a) the Client takes possession of the Goods at Call a Geek address; or

3.3. (b) the Client takes possession of the Goods at the Client's nominated address (in the event that the Goods are delivered by Call a Geek or Call a Geek's nominated carrier).

3.4. At Call a Geek's sole discretion the costs of delivery is excluded in the Price.

3.5. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Call a Geek shall be entitled to charge a reasonable fee for redelivery.

3.6. Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.

3.7. Call a Geek may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

3.8. The failure of Call a Geek to deliver shall not entitle either party to treat this contract as repudiated.

3.9. Call a Geek shall not be liable for any loss or damage whatsoever due to failure by Call a Geek to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Call a Geek.

4. Acceptance

4.1. Any instructions received by the Call a Geek from the Customer for the supply of Goods and/or Services shall be taken as the Customer's acceptance of the Goods and/or services supplied by the Call a Geek and shall constitute acceptance of the terms and conditions contained herein.

4.2. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

4.3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Call a Geek.

4.4. The Customer shall give Call a Geek not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer's name and/or any other change in the Customer's details (including but not limited to, changes in the Customer's address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Call a Geek as a result of the Customer's failure to comply with this clause.

5. Price and Payment

5.1. At Call a Geek's sole discretion the Price shall be either: (a) As indicated on invoices provided by Call a Geek to the Customer in respect of Goods or Services supplied; or (b) Call a Geek's current price at the date of delivery of the Service according to (c) Call a Geek's current Price list or hourly rate ; or (d) Call a Geek's quoted Price (subject to clause 5.2) which shall be binding upon Call a Geek provided that the Customer shall accept Call a Geek's quotation in writing within seven (7) days.

5.2. At Call a Geek's sole discretion a deposit may be required. (a) Receipt by Call a Geek of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured.

5.3. Call a Geek may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties. Progress payments shall be made within seven (7) working days of each monthly payment claim.

5.4. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date on the invoice in which a statement is posted to the Customer' address or address for notices.

5.5. Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and Call a Geek.

5.6. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

6. Customer's Disclaimer

6.1. The Customer hereby disclaims any right to rescind, or cancel any contract with Call a Geek or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Call a Geek. The Service provided by the Contractor is bought relying solely upon the Customer's skill and judgment.

7. Defects

7.1. The Customer shall inspect the Services provided by Call a Geek and shall within seven (7) days of delivery (time being of the essence) notify Call a Geek of any alleged defect, damage or failure to comply with the description or quote. The Customer shall afford Call a Geek an opportunity to inspect the area serviced within a reasonable time following completion of the service provided if the Customer believes the Service provided is defective in any way. If the Customer shall fail to comply with these provisions the completed works shall be presumed to be free from any defect. For defective Works, Call a Geek's liability is limited to undertaking remedial work on the agreed fault.

8. Default and Consequences of Default

8.1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.

8.2. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Call a Geek from and against all costs and disbursements incurred by Call a Geek in pursuing the debt including legal costs on a solicitor and own client basis and Call a Geek's collection agency costs.

8.3. Without prejudice to any other remedies Call a Geek may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Call a Geek may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Call a Geek will not be liable to the Customer for any loss or damage the Customer suffers because Call a Geek has exercised its rights under this clause.

8.4. If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.

8.5. Without prejudice to the Contractor's other remedies at law Call a Geek shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Call a Geek shall, whether or not due for payment, become immediately payable in the event that: (a) any money payable to Call a Geek becomes overdue, or in Call a Geek's opinion the Customer will be unable to meet its payments as they fall due; or (b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

9. Security and Charge

9.1. Despite anything to the contrary contained herein or any other rights which Call a Geek may have howsoever: (a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Contractor or Call a Geek's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Contractor (or Call a Geek's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) should Call a Geek elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Call a Geek from and against all Call a Geek's costs and disbursements including legal costs on a solicitor and own client basis. (c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Contractor or Call a Geek's nominee as the Customer's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 9.1.

10. Cancellation

10.1. Call a Geek may cancel any contract to which these terms and conditions apply by giving written notice to the Customer. On giving such notice Call a Geek shall repay to the Customer any sums paid in respect of the Price. Call a Geek shall not be liable for any loss or damage whatever arising from such cancellation.

10.2. In the event that the Customer cancels any contract the Customer shall be liable for any loss incurred by Call a Geek (including, but not limited to, any loss of profits) up to the time of cancellation.

11. Privacy Act 1993

11.1. The Customer and the Guarantor/s (if separate to the Customer) authorises the Contractor to: (a) collect, retain and use any information about the Customer, for the purpose of assessing the Customer's creditworthiness or marketing products and services to the Customer; and (b) disclose information about the Customer, whether collected by Call a Geek from the Customer directly or obtained by Call a Geek from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.

11.2. Where the Customer and/or Guarantors are an individual the authorities under clause 11.1 are authorities or consents for the purposes of the Privacy Act 1993.

11.3. The Customer and/or Guarantors shall have the right to request the Contractor for a copy of the information about the Customer and/or Guarantors retained by the Contractor and the right to request Call a Geek to correct any incorrect information about the Customer and/or Guarantors held by Call a Geek.

12. General

12.1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

12.2. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.

12.3. Call a Geek shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Call a Geek of these terms and conditions.

12.4. In the event of any breach of this contract by Call a Geek the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the contract price for Services provided and limited to the amount of monies paid to Call a Geek by the Customer in Part or Full whichever is the lesser amount.

12.5. The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by Call a Geek.

12.6. Call a Geek may license or sub-contract all or any part of its rights and obligations without the Customer's consent.

12.7. Call a Geek reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Call a Geek notifies the Customer of such change.

12.8. The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.

12.9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

12.10. The failure by Call a Geek to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Call a Geek's right to subsequently enforce that provision.