Baytech Ltd – Terms & Conditions of Trade

1. Definitions
1.1 ‘Baytech’ shall mean Baytech Ltd its successors and assigns or any person acting on behalf of and with the authority of Baytech 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 Baytech to the Client.
1.3 ‘Guarantor’ shall mean that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 ‘Goods’ shall mean all Goods supplied by Baytech to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Baytech to the Client.
1.5 ‘Services’ shall mean all services supplied by Baytech to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 ‘Price’ shall mean the price payable for the Goods as agreed between Baytech and the Client in accordance with clause 3 of this contract.

2. Acceptance
2.1 Any instructions received by Baytech from the Client for the supply of Goods and/or the Clients acceptance of Goods supplied by Baytech shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Baytech.
2.4 The Client shall give Baytech not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Clients name and/or any other change in the Clients details (including but not limited to, changes in the Clients address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Baytech as a result of the Clients failure to comply with this clause.
2.5 Goods are supplied by Baytech only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Clients order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.6 In the event that the Goods provided by Baytech are subject to an insurance claim that the Client has made, then the Client agrees to honour their obligation for payment for such transactions invoiced by Baytech and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful or whether the Client has been paid by the insurance company or not.

3. Price And Payment
3.1 At Baytech‟s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Baytech to the Client in respect of Goods supplied; or
(b) Baytech‟s quoted Price (subject to clause 3.2) which shall be binding upon Baytech provided that the Client shall accept Baytech‟s quotation in writing within thirty (30) days.
3.2 Baytech reserves the right to change the Price in the event of a variation to Baytech‟s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties not evident prior to commencing work or as a result of increases to Baytech in the cost of materials and labour) will be charged for on the basis of Baytech‟s quotation and will be shown as variations on the invoice.
3.3 At Baytech‟s sole discretion a non refundable deposit may be required.
3.4 Baytech may submit a detailed payment claim at intervals not less than monthly for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations and the value of materials delivered to the site but not yet installed. Progress payment shall be made within twenty (20) working days of each monthly payment claim.
3.5 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 twenty (20) days following the end of the month in which a statement is posted to the Clients address or address for notices.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by approved finance company payment,or by any other method as agreed to between the Client and Baytech.
3.7 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.

4. Delivery Of Goods
4.1 At Baytech‟s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Baytech‟s address; or
(b) the Client takes possession of the Goods at the Clients nominated address (in the event that the Goods are delivered by Baytech or Baytech‟s nominated carrier); or
(c) the Clients nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Clients agent.
4.2 At Baytech‟s sole discretion the costs of delivery are for the Clientsaccount.
4.3 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 Baytech shall be entitled to charge a reasonable fee for redelivery.
4.4 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.
4.5 Baytech 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.
4.6 The failure of Baytech to deliver shall not entitle either party to treat this contract as repudiated.
4.7 Baytech shall not be liable for any loss or damage whatsoever due to failure by Baytech to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Baytech.

5. Risk
5.1 If Baytech retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Baytech is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Baytech is sufficient evidence of Baytech‟s rights to receive the insurance proceeds without the need for any person dealing with Baytech to make further enquiries.
5.3 Baytech shall not be held liable for any loss or corruption of data or files (including, but not limited to, software programmes) resulting from servicing or repairs being undertaken on the Goods. It is the sole responsibility of the Client to back-up any data which they believe to be important, valuable or irreplaceable prior to bringing in any Goods for servicing or repairs.
5.4 Where Baytech is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and Baytech shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
5.5 Unless expressly guaranteed in writing by Baytech all communication systems sold, leased out, or otherwise provided by Baytech are provided as „non-secured‟ systems. For the sake of clarity Baytech will accept no liability for any charges, losses or damages incurred by the Client in the event that the Clients communication system is hacked, phreaked, or otherwise accessed by any third party whose intent is to utilise, piggy back, hijack or otherwise corrupt the Clients communication system.

6. Access
6.1 The Client shall ensure that Baytech has clear and free access to the installation site at all times to enable them to undertake the installation. Baytech shall not be liable for any loss or damage to the site unless due to the negligence of Baytech.

7. Title
7.1 Baytech and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Baytech all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Baytech in respect of all contracts between Baytech and the Client.
7.2 Receipt by Baytech of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Baytech‟s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Baytech shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Baytech to the Client Baytech may give notice in writing to the Client to return the Goods or any of them to Baytech. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) the Client is only a bailee of the Goods and until such time as Baytech has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Baytech for the Goods, on trust for Baytech; and
(d) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Baytech will be the owner of the end products; and
(e) if the Client fails to return the Goods to Baytech then Baytech or Baytech‟s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods, and Baytech will not be liable for any reasonable loss or damage suffered as a result of any action by Baytech under this clause.

8. Personal Property Securities Act 1999 (‘PPSA’)
8.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by Baytech to the Client (if any) and all Goods that will be supplied in the future by Baytech to the Client.
8.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Baytech may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Baytech for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of Baytech; and
(d) immediately advise Baytech of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.3 Baytech and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
8.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
8.5 Unless otherwise agreed to in writing by Baytech, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
8.6 The Client shall unconditionally ratify any actions taken by Baytech under clauses 8.1 to 8.5.

9. Security And Charge
9.1 Despite anything to the contrary contained herein or any other rights which Baytech may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 Baytech or Baytech’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Baytech (or Baytech’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 Baytech elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Baytech from and against all Baytech’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Baytech or Baytech’s nominee as the Clients 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. Client’s Disclaimer
10.1 The Client hereby disclaims any right to rescind, or cancel any contract with Baytech or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Baytech and the Client acknowledges that the Goods are bought relying solely upon the Clients skill and judgment.

11. Defects
11.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Baytech of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Baytech an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Baytech has agreed in writing that the Client is entitled to reject, Baytech’s liability is limited to either (at Baytech’s discretion) replacing the Goods or repairing the Goods.
11.2 In the event that Baytech investigates the defects and finds that the defect is a result of faulty equipment that the Goods are connected to that were not supplied by Baytech or is a result of user error, then Baytech reserves the right to charge the Client for labour charges incurred in performing the investigation and any subsequent repair charges.

12. Returns
12.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 11.1; and
(b) Baytech has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Clients cost within seven (7) days of the delivery date; and
(d) Baytech will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
12.2 Baytech may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty five percent (25%) of the value of the returned Goods plus any freight.
12.3 Non-stocklist items or Goods made to the Clients specifications are under no circumstances acceptable for credit or return.

13. Warranty
13.1 Subject to the conditions of warranty set out in Clause 13.2 Baytech warrants that if any defect in any workmanship of Baytech becomes apparent and is reported to Baytech within twelve (12) months of the date of delivery (time being of the essence) then Baytech will either (at Baytech’s sole discretion) replace or remedy the workmanship.
13.2 The conditions applicable to the warranty given by Clause 13.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Baytech; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Baytech shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Baytech’s consent.
(c) in respect of all claims Baytech shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Clients claim.
13.3 For Goods not manufactured by Baytech, the warranty shall be the current warranty provided by the manufacturer of the Goods. Baytech shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
13.4 In the case of second hand Goods, the Client acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by Baytech as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Baytech shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

14. Consumer Guarantees Act 1993
14.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Baytech to the Client.

15. Intellectual Property
15.1 Where Baytech has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Baytech, and shall only be used by the Client at Baytech‟s discretion.
15.2 The Client warrants that all designs or instructions to Baytech will not cause Baytech to infringe any patent, registered design or trademark in the execution of the Clients order and the Client agrees to indemnify Baytech against any action taken by a third party against Baytech in respect of any such infringement.
15.3 The Client agrees that Baytech may use any documents, designs, drawings or Goods created by Baytech for the purposes of advertising, marketing, or entry into any competition.

16. Default & Consequences Of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Baytech’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 In the event that the Clients payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Baytech.
16.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Baytech from and against all costs and disbursements incurred by Baytech in pursuing the debt including legal costs on a solicitor and own client basis and Baytech’s collection agency costs.
16.4 Without prejudice to any other remedies Baytech may have, if at any time the Client is in breach of any obligation (including those relating to payment) Baytech may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Baytech will not be liable to the Client for any loss or damage the Client suffers because Baytech has exercised its rights under this clause.
16.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
16.6 Without prejudice to Baytech’s other remedies at law Baytech shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Baytech shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Baytech becomes overdue, or in Baytech’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client 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 Client or any asset of the Client.

17. Cancellation
17.1 Baytech may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Baytech shall repay to
the Client any sums paid in respect of the Price. Baytech shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by Baytech (including, but not limited to, any loss of profits) up to the time of cancellation.
17.3 Cancellation of orders for Goods made to the Clients specifications or non-stocklist items will definitely not be accepted, once production has commenced.

18. Privacy Act 1993
18.1 The Client and the Guarantor/s (if separate to the Client) authorises Baytech to:
(a) collect, retain and use any information about the Client and/or Guarantors, for the purpose of assessing the Clients and/or Guarantors creditworthiness or marketing products and services to the Client and/or Guarantors; and
(b) disclose information about the Client and/or Guarantors, whether collected by Baytech from the Client and/or Guarantors directly or obtained by Baytech 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 Client and/or Guarantors.
18.2 Where the Client and/or Guarantors are an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.
18.3 The Client and/or Guarantors shall have the right to request Baytech for a copy of the information about the Client and/or Guarantors retained by Baytech and the right to request Baytech to correct any incorrect information about the Client and/or Guarantors held by Baytech.

19. Unpaid Seller’s Rights
19.1 Where the Client has left any item with Baytech for repair, modification, exchange or for Baytech to perform any other Service in relation to the item and Baytech has not received or been tendered the whole of the Price, or the payment has been dishonoured, Baytech shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Baytech is in possession of the item; (c) a right to sell the item.
19.2 The lien of Baytech shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

20. General
20.1 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.
20.2 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 Tauranga, New Zealand.
20.3 Baytech shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Baytech of these terms and conditions.
20.4 In the event of any breach of this contract by Baytech the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Baytech nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 Baytech may license or sub-contract all or any part of its rights and obligations without the Clients consent.
20.7 Baytech 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 Baytech notifies the Client of such change.
20.8 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.
20.9 The failure by Baytech to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Baytech’s right to subsequently enforce that provision.

About BayTech

We provide a friendly prompt and efficient service to our clients who are based primarily in the Bay of Plenty. We are able to provide server and network support including desktop support for users from our offices by utilising our remote access software. This enables us to connect to any server or PC in New Zealand and troubleshoot and interact with a users computer.

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Contact Us

  Email us at: enquiries@bay-tech.co.nz

  07 575 4673 or
0800 00 56 00

   130 Maleme Street
Business Park
Suite 9
Greerton
Tauranga 3112