Purchase Terms and Conditions
We, us, our, and similar expressions, refer to Pitney Bowes New Zealand Ltd (NZBN 9429037769659). You, your, and similar expressions, refer to you, our customer or proposed customer shown on the Order Form.
By signing the Order Form, you agree to be bound by these Terms and Conditions.
Agreement means the Order Form together with these Terms and Conditions.
Consumable Supplies means the range of items that we so designate from time to time, including without limitation paper, envelopes, labels, ink and toner.
Equipment means the equipment specified on the Order Form and all accessories which are or become attached, and includes any replacement parts and anything you obtain as a substitute.
Maintenance Plan means a maintenance plan as described in clauses M1 to M21 below.
Order Form means the front page Order Form that sets out the commercial details that these Terms and Conditions are attached to.
Services means any services specified on the Order Form.
Terms and Conditions means the terms and conditions set out in this document.
PURCHASE & PAYMENT
(1) Purchase. We agree to sell and you agree to buy the Equipment on the terms and conditions of this Agreement.
(2) Price / Payment. The purchase price for the Equipment is set out in the Order Form, which must be paid to us within 30 days of the date of our invoice, without set-off, counterclaim or, unless required by law, deduction or withholding.
(3) Trade-ins. If we agree to purchase any item from you as a trade-in, then you promise that we will become the absolute owner at the time the item is delivered to us and that you will properly maintain and service the item up to the time of delivery. The item remains at your risk until you deliver it to us.
(4) Maintenance Plan. If you have selected a Maintenance Plan in the Order Form, then you have a maintenance plan for the Equipment on the relevant Maintenance Plan terms and conditions set out below. Where you have selected a Maintenance Plan, the specified payment amount includes Maintenance Plan fees. Such fees are payable in advance with the specified frequency set out in the Order Form.
(5) New Equipment. If there is any manufacturing defect in material or workmanship in relation to any new Equipment within 12 months of delivery, then we will either repair or replace the Equipment.
(6) Repair or replace. We can choose whether to repair or replace any Equipment, and that is the limit of our liability under this warranty. This warranty does not apply if you have used any parts or Consumable Supplies that are not genuine Pitney Bowes parts or Consumable Supplies.
(7) Notice. We will only recognise a claim under this warranty if you give us notice in writing within 12 months after delivery by us of new Equipment.
(8) Exclusion of implied terms, conditions, guarantees, representations and warranties. All conditions, terms, representations, guarantees and warranties that are or might otherwise be implied by law, practice, trade usage, or international convention, are excluded to the fullest extent permitted by law. For the purposes of section 5D of the Fair Trading Act 1986 (NZ) (FTA) and section 43 of the Consumer Guarantees Act 1993(NZ) (CGA), we both acknowledge and agree that: (a) the Equipment and Services are supplied to you for a business purpose and are not “consumer” goods (as defined in the CGA and FTA); and (b) in any event, to the extent permitted by law, we are contracting out of the CGA (to the extent that the CGA would otherwise apply to any matters covered by this Agreement) and sections 9, 12A and 13 of the FTA (in respect of all matters covered by this Agreement).
(9) Sale by specification and purpose. We offer our products by specification. You decide what purpose to use them for or to re-supply them for. You alone are responsible for determining your technical requirements and for determining whether any product we supply is fit and suitable for your purpose.
(10) Forward looking statements. We are not liable to you to the extent that you suffer any loss resulting from any reliance or otherwise on any information provided by us or our representatives that is a projection, estimate or opinion (including performance figures) in relation to the Equipment.
(11) Indirect and consequential loss. No party is liable to the other party for any loss suffered or incurred by it arising under or in connection with this Agreement (each a “Loss Event”), whether in contract, tort (including negligence) or otherwise:
(i) which does not arise naturally and in the ordinary course of the Loss Event; or
(ii) which constitutes, or arises from or in connection with: (A) a loss or revenue, profit or opportunity; (B) a loss of goodwill; or (C) a loss of reputation, even if such loss arises naturally or in the usual course of the Loss Event. For the avoidance of doubt, this clause 11(ii) does not apply to a breach of your payment obligations under clause 2.
(12) Total Liability. Each party’s total liability to the other party for all claims arising under or in connection with this Agreement (whether in contract, tort (including negligence) or otherwise) will not exceed an amount equal to 125% of the total amount of fees payable by you to us under this Agreement.
(13) Death, personal injury and fraud. Nothing in this Agreement excludes or restricts either party’s liability for: (i) death or personal injury resulting from the negligence of a party or its employees acting in the course of their employment; (ii) fraud; or (iii) any other cause of action which cannot be limited or excluded under applicable law.
INTELLECTUAL PROPERTY & SOFTWARE
(14) Postal Security Device (PSD). PSD refers to the postage evidencing technology (software and hardware) included in current-generation Pitney Bowes mailing equipment. You must not tamper with the PSD. We are entitled at all reasonable times to have access to the PSD for the purposes of verifying compliance with these provisions and with the requirements of postal authorities and relevant legislation.
(15) Software licences.
(i) Embedded Software. The Equipment may contain embedded software. You agree that: (a) you are licensed, on a non-exclusive but perpetual basis, to use the embedded software only with the Equipment in which it resides; (b) Pitney Bowes Inc. and its licensors own the copyright and other intellectual property in and to the embedded software; (c) you will not copy, modify, de-compile, or otherwise attempt to unbundle, reverse engineer or create derivative works of the embedded software, except as permitted by applicable law; (d) you will not distribute or otherwise disclose the embedded software (or any portion thereof) to any other person; and (e) you may not export the embedded software in contravention of applicable export control laws.
(ii) Additional Software. If the Order Form includes the purchase of additional software products, you are licensed on a non-exclusive basis to use such software, subject to the applicable licence terms found at: http://www.pitneybowes.com/us/license-terms-of-use/software-and-subscription-terms-and-conditions.html. Such terms are incorporated into this Agreement by reference.
(16) Trade markings and IP Rights. You may not remove or alter any serial numbers, trade marks or other markings or get-up, nor may you co-brand or co-logo any goods provided by us. You do not acquire any right to any of our intellectual property. You must not incorporate any of our trade marks into your trade marks, company names, internet addresses, domain names, or any other designations.
(17) Publicity/Marketing. We may use your name in promotional materials, including press releases, presentations and customer references regarding the sale of any goods. You give us that permission free of charge for worldwide use in any medium. However, we will obtain your prior approval for publicity that contains quotes or endorsements attributed to you. We may send you emails and marketing materials from time-to-time unless you advise us in writing that you do not wish to receive any such emails and/or marketing materials.
(18) IP Infringement. If there is any allegation or apprehension that the Equipment infringes the rights of others you must tell us and give us the opportunity to modify, alter or substitute the alleged infringing item or items.
(19) Entire Agreement. This Agreement constitutes the entire agreement between you and us in relation to the Equipment, Services and/or the Maintenance Plan, and supersedes all previous agreements and understandings between you and us in relation to the Equipment, Services and/or the Maintenance Plan.
(20) Assignment. We may, and you must not without our prior written consent, assign any part or the whole of any right or benefit of this Agreement.
(21) Subcontractors. We may choose to use one or more subcontractors to fulfil our obligations under this Agreement.
(22) Variation. This Agreement can only be varied by the written agreement of each party executed by an authorised person.
(23) Blanks. We may complete any blanks or correct any errors relating to the Customer Details section on the Order Form, on your behalf.
(24) Personal information. We may collect personal information about you and your representatives (and in particular the person signing this Agreement) (your personal information), in connection with our dealings with you. We will at all times abide by the Privacy Act 1993, including the Information Privacy Principles, in handling personal information. We collect and use your personal information to provide you with our products and services, including in assessing any credit application and establishing and operating any credit account as a result and to manage our relationship with you. If you provide us with any personal information about a third party (including your representatives) you confirm that you have the authorisation from the individual concerned to disclose their personal information to us and to authorise us to use their information in accordance with this Agreement. You must inform them of their rights to access and request correction of their personal information set out below.
We may disclose your personal information to regulatory bodies where this is required by law. We may also disclose your personal information to other companies within the Pitney Bowes group. If you submit a credit application and/or utilise a credit account with us, we may disclose your personal information, including default information, to credit reporting and debt collection agencies from time to time and that those agencies may hold your personal information on their systems and disclose it to other users of their services. We may also disclose your personal to subcontractors, and other third parties engaged by us to carry out services on our behalf, or otherwise in accordance with our legitimate business needs. This may include the disclosure of your personal information to recipients located in the United States of America, the United Kingdom and any other country in which the Pitney Bowes group operates in. A list of such countries can be found at http://www.pb.com/Contact-Us/Worldwide-Regions.shtml.
(25) Health and Safety. Both parties agree to, and will ensure that their employees, subcontractors and agents (Personnel), comply with the Health and Safety at Work Act 2015 (HSW Act) and all regulations, rules, standards, approved codes of practice and any other applicable laws relating to health and safety so far as they relate to the supply of the Equipment and the Services. Where the parties have a duty in relation to the same matter imposed by or under the HSW Act, the parties agree to consult, co-operate and co-ordinate activities to discharge their respective duties.
(26) Notices. All notices we give each other must be in writing and signed. Notices must either be delivered by hand or sent by prepaid post to the relevant address shown on the Order Form or a changed address of which due notice has been given. Notices are deemed given on the day of delivery if delivered between 9am and 5pm on a day in which banks are open in Auckland that is not a Saturday, Sunday or public holiday, or on the next such day following delivery if delivered at some other time, or two days after posting if given by prepaid post.
(27) Governing Law. This Agreement is governed by and is to be interpreted according to the laws in force in New Zealand, and you submit to the non-exclusive jurisdiction of the Courts operating in New Zealand.
(28) Trusts. This clause 28 applies if you enter into this Agreement as trustee of any trust. You warrant that you: (i) have entered into this Agreement in your capacity as trustee of the trust and for the benefit of the beneficiaries of the trust; (ii) have power under the trust deed to enter into and observe your obligations under this Agreement; (iii) are the only trustee of the trust and that there has been no proposal or decision to appoint an additional trustee to the trust; (iv) have not been removed from, ceased to act, or resigned from the office of trustee of the trust and there has been no proposal or decision to remove you as trustee of the trust; (v) are not in default under the trust deed; and (vi) have the right, and will at all times have the right, to be fully indemnified out of the assets of the trust in respect of its obligations under this Agreement and the assets of the trust are sufficient to satisfy that right of indemnity.
(29) Risk and Title. Risk and title in the Equipment will pass to you upon your receipt of the Equipment. You carry all risk of goods in transit where you arrange for carriage.
The following additional terms and conditions apply to an Equipment Maintenance Plan.
(M1) Selection of Plan. A Maintenance Plan applies only where that is indicated on the Order Form.
(M2) Plan types. The type of plan is as indicated in the Order Form: P = Platinum; G = Gold; S = Silver; B2B = Back to Base; and C = Rates and/or Resets only.
(M3) Platinum Plan (P). For equipment covered under a Platinum Plan, we will provide remedial maintenance during the normal maintenance hours stated in clause M9, starting on-site within 4 hours of your call. To avoid doubt, the Platinum Plan can apply to postage meters (with rates and Resets (as defined in clause PP3 below)), and may apply to certain other devices.
(M4) Gold Plan (G). For equipment covered under a Gold Plan, we will provide remedial maintenance during the normal maintenance hours stated in clause M9, starting on-site within 8 hours of your call. A G1 Gold Plan for a postage meter or Intellilink Control Center also includes postage rate upgrades at no extra charge during the plan period. A G2 Gold Plan includes postage rate upgrades and Resets (as defined in clause PP3 below) at no extra charge during the plan period.
(M5) Silver Plan (S). For equipment covered under a Silver Plan, we will provide remedial maintenance during the normal maintenance hours stated in M9, starting on-site within 2 working days of your call. An S1 Silver Plan for a postage meter or Intellilink Control Center also includes postage rate upgrades at no extra charge during the plan period. An S2 Silver Plan includes postage rate upgrades and Resets (as defined in clause PP3 below) at no extra charge during the plan period.
(M6) Back to Base Plan (B2B). For equipment covered under a Back to Base Plan, we will provide remedial maintenance during normal maintenance hours stated in clause M9, within 5 working days of receipt of the equipment. You must arrange for delivery of the equipment at your cost to our nearest repair centre and for collection of the equipment after repair. We may ship the repaired equipment back to you in which case you must pay us for the return delivery costs.
(M7) Rates and Resets only (C). For equipment covered under Rates Only Plan (C1) or Rates and Resets Only Plan (C2), we will not provide any remedial maintenance but will only provide postage rate upgrades under C1 plan, and postage rate upgrades and Resets (as defined in clause PP3 below) under a C2 plan, during the term of the plan.
(M8) Special Plan. If we agree any other or special Maintenance Plan conditions with you in writing then those conditions also apply to this Agreement. To the extent of any inconsistency, any such special or other conditions prevail.
(M9) Normal maintenance hours. Normal maintenance hours are from 8am to 5pm Monday to Friday excluding local public holidays.
(M10) Response times. Response times are targets and averages only, measured by time within our normal business hours. We use our best endeavours to achieve the target response times but occasional unexpected delays may be experienced.
(M11) Remedial maintenance. Remedial maintenance is maintenance that is required because (and only to the extent that) the Equipment is not performing to the normal standards for such equipment due to a fault in the Equipment not caused by anything external to the Equipment.
(M12) Preventative maintenance. You must let us carry out preventative maintenance if we wish to do so, at all reasonable times. Preventative maintenance is only available on selected products.
(M13) Parts and labour. Maintenance Plan fees include all parts and labour required for any remedial or preventative maintenance we provide.
(M14) Consumable supplies not included. Consumable Supplies are not included in a Maintenance Plan. You must pay for them separately.
(M15) Replacement parts. We become the owner of parts that we replace, and you become the owner of the replacement parts. Replacement parts may not be exactly the same as the originals. We may use reconditioned parts rather than new parts, as replacements.
(M16) No tampering. You must not tamper with any copy count or meter, or any other sealed part of the equipment.
(M17) Workshop repairs. You must allow us to take the equipment away to our workshop, if that is reasonably required so we can carry out any maintenance under the Maintenance Plan.
(M18) Parts and labour outside the Maintenance Plan. We may charge at our ruling rates for any maintenance or parts provided for Equipment if you have not followed the manufacturer's recommendations for use or if we are called out for a problem not requiring remedial maintenance or which is due to abuse, misuse, negligence or misoperation or due to accidental damage or if the Equipment has been repaired, interfered with or moved by someone other than us, or due to the use of other than genuine Pitney Bowes (or approved) parts or Consumable Supplies .
(M19) Loan machine during workshop repairs. We may, at our sole discretion, provide you with equipment of similar functionality to the Equipment being repaired on loan whilst your Equipment is being repaired at our workshop. We will at all times remain the owner of such loan equipment. You must keep the loan equipment safe and secure in accordance with the applicable terms and conditions that apply to your Equipment. You will be responsible for all loss or damage to the loan equipment during such loan period regardless whether arising from misuse, wilful and/or deliberate damage or otherwise. Upon the return of your repaired Equipment, you must make the loan equipment available for us to collect. All fees payable by you under this Agreement will continue to be payable on the same terms and conditions, including but not limited to any payments under the Order Form.
(M20) No guarantee of uninterrupted operation. No Maintenance Plan can guarantee uninterrupted operation of the Equipment.
(M21) Excessive wear and tear. We reserve the right to monitor the usage of Equipment based on the cycle count recorded on the Equipment at intervals decided by us in our sole discretion. If we determine that the cycle count on the Equipment exceeds the recommended cycle count as specified in the product maintenance manual for that item, we reserve the right to discontinue maintenance of any Equipment and/or software after giving you 3 months’ prior notice in writing.
POSTAGE BY PHONE® CONDITIONS
The following additional conditions apply to a Postage by Phone plan.
(PP1) Procedures. Our standard administrative procedures which apply from time to time for the functioning of the Postage by Phone system, and any requirements of Australia Post, must be followed.
(PP2) Reset Deposit. On signing this Agreement, you must pay the amount specified on the ‘Postage by Phone®” section of the Order Form (the Reset Deposit) to us in our capacity as the trustee of The Postage-by-Phone Reset Deposit Account trust fund. From time to time after that we may agree with you for you to increase the amount of the Reset Deposit.
(PP3) Resets. Under the plan you have the potential to set and reset postage franking credits (Resets) on the postage meter or Intellilink Control Center in accordance with the Postage by Phone system. We may, but we are not obliged to, allow you to have Resets in any amount as requested from time to time.
(PP4) Direct debit request. You must arrange for a direct debit request to your bank which enables us to directly claim against your bank account for amounts which are payable by you to us under the Postage by Phone system. You must keep that request current for so long as you are operating under the plan.
(PP5) Payments for Resets. For each Reset you must pay us the total value of the postage for which the postage meter or Intellilink Control Center has been reset plus a reset fee. We may claim that amount from your bank account. The current reset fee is shown on the Order Form but we may vary the specified fee from time to time in line with our ruling rates.
(PP6) Refunds. If at any time you are entitled to a refund in respect of unused postage credits on the postage meter or Intellilink Control Center (such as when the machine might need to be reset to zero for maintenance service or on the termination of the plan), then you are not entitled to any refund of associated fees and other payments.
(PP7) If direct debit request waived. In our discretion we may in some cases waive the requirement for you to give a direct debit request to your bank. If we waive that requirement, then the following provisions apply. We may recover all amounts which are due from you to us, from the Reset Deposit. You must immediately top up the Reset Deposit following a Reset, by paying in an appropriate amount.
(PP8) Tier 2 Rebates. If you have been provided with tier 2 postage rate rebate, then such rebate will be provided to you in accordance with the tier 2 postage rate rebate terms and conditions which are available upon request.