Certain legislation in New Zealand may provide consumer guarantees or impose obligations on Dell which cannot be excluded, restricted or modified, or only to a limited extent. These Terms and Conditions are subject to such legislation, including without limitation New Zealand Consumer Law.
New Zealand Consumer Law means the law in New Zealand relating to relating to consumers including the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.
Contract means a contract for sale by Dell to the Customer of the Products and/or services incorporating Consumer has the meaning given to that term in section 2(1) of the Consumer Guarantees Act and the Fair Trading Act 1986.
Consumer Contract has the meaning given to that term in section 2(1) of the Fair Trading Act 1986.
Critical Component means any component of a system used in High Risk Circumstances.
Customer means the person or legal entity identified in Dell's Quotation or Invoice.
Dell means Dell New Zealand Limited.
Dell-branded means computer hardware products that are marked with the Dell brand, including all standard components, but does not include:
(a) software, sound cards, speakers, external devices, accessories or parts added to the Dell-branded hardware products after they are shipped from Dell;
(b) accessories or parts added to the Dell-branded hardware products through Dell's Custom Factory Integration Services at Customer's request;
(c) accessories or parts that are not installed in the Dell factory; or
(d) Third Party Products that are software, peripherals, monitors, keyboards and mice, unless they are included on Dell’s standard price list.
Extended Warranty means additional warranty protection, purchased by the Customer, that is in addition to the Standard Warranty.
High Risk Activities means use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, medical life support, mass and air traffic control, weapons systems, life-support machines or any other application in which the failure of the Products could lead directly to death, personal injury or severe physical or property damage.
Order Confirmation means formal acknowledgement of Product ordered by Customer, sent by Dell.
Place of Delivery means the place designated by the Customer and agreed to by Dell for delivery of Product.
Price means the price as per Dell Quotation and Order Confirmation and the latter will have precedence.
Products means the products as described in Order Confirmation and may include Dell-branded products, third party products and Service Offerings.
Returns Policy means the policy found at (http://www.dell.com/learn/nz/en/nzcorp1/shared-content-mer/html-returns-policy-nz?c=nz&l=en&s=corp&cs=nzcorp1).
Service Offerings means the different service options offered by Dell for the Products or any part of them and for varying periods, as descr i bed in Dell's published literature, including but not limited to Dell's Invoice and/or Dell's Service Description.
Standard Warranty means the warranty protection that comes standard with purchases from Dell, as set out in clause 8 of these Terms and Conditions.
Third Party Products means products other than Dell-branded.
2. Formation of contract
2.1 No Contract comes into existence until the Customer's order has been accepted by Dell and such acceptance has been received by the Customer. The Contract is deemed to be concluded at the time and place where such acceptance is received by the Customer. The Customer warrants that it is buying for its own internal use only and not for re-sale purposes.
2.2 The products sold and/or services rendered are subject to these Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by the Customer. The Customer acknowledges that it is aware of the contents of and agrees to be bound by these Terms and Conditions. Neither Dell’s acknowledgement of a purchase order nor its failure to object to conflicting, different, or additional terms and conditions in a purchase order will be deemed an acceptance of such terms and conditions or a waiver of the provisions.
3. Orders, price and payment
3.1 Unless credit terms have been expressly agreed by Dell, payment for the Products and/or services must be made in full before physical delivery of Products and/or services.
3.2 The Customer will pay for all applicable shipping and handling charges.
3.3 The Customer will bear all and any sales, use, goods and services, value added, excise, privilege and similar levies/taxes.
3.4 Time for payment is of the essence. Dell reserves the right to charge interest at the rate of 2% above the base commercial floating rate for National Australia Bank in Sydney.
4.1 All software provided is subject to the terms and conditions of the license agreement relating to that software. The Customer acknowledges its obligations to abide by such license agreements. The Customer acknowledges that Dell does not make any express warranty in relation to any software under these Terms and Conditions of Sale. In addition to any rights the Customer may have under statute, all software is warranted in accordance with the license agreement that governs its use.
4.2 All rights, title or interest in respect of the intellectual property rights in the software remain with Dell or the licensor of the software at all times.
5. Title and risk
Title to and risk in the Products passes to the Customer upon delivery of the Products to the Customer. Title to those products, which are software, shall remain with the applicable licensors at all times.
6.1 Dell will deliver the Products to the Place of Delivery.
6.2 For the efficiency of Dell’s production and fulfilment procedures, it may be necessary for Dell to deliver the Products by instalments in any sequence. Except as provided in clause 6.4, the Customer may not cancel the Contract where Products are delivered by instalments.
6.3 Any dates provided by Dell for the delivery of the Products are estimates only and will not form part of the Contract. Actual delivery date will be affected by factors such as clearance of payment, Customer’s location and availability of parts for the Products. For non-Consumer Contracts, Dell will not be liable for any delay in delivery of the products and/or services, howsoever caused.
6.4 Customer may cancel an order for Products purchased under a Consumer Contract if Dell is unable to deliver the Products within a reasonable period from the estimated delivery date.
6.5 Dell has a policy of on-going Product update and revision. As a result, Dell may revise and/or discontinue Products at any time without notice.
6.6 Where Products ordered under a Consumer Contract have been revised and/or discontinued, Dell will supply revised or updated Products with the same or better functionality and performance of the Products ordered. The Customer accepts that Dell's policy may result in differences between the specification of Products delivered to the Customer and the specification of Products ordered.
7. Acceptance of Products
7.1 Unless the Customer notifies Dell to the contrary on the day of delivery and such notification is confirmed in writing within two days, the Products will be deemed to have been accepted by the Customer. The Customer will not be entitled to withhold payment of all or any of the price of the Products whilst any claim is being investigated by Dell.
7.2 New Dell-branded Products (excluding Dell co-branded products) purchased under these Terms and Conditions directly from Dell by Customer may be returned by the Customer up to 15 days from the date of the invoice for a replacement, refund or credit of the purchase price in accordance with Dell's Returns Policy in effect in New Zealand at the date of the invoice. The refund or credit will not include any shipping and handling charges forming part of the purchase price. Products returned under the Returns and Refund for Change of Mind Policy must be received by Dell in as-new or as-shipped-by-Dell condition, including conformance to invoiced specification, and all of the manuals, diskettes, DVD/CDs, power cables and other items included with a Product must be returned with it.
7.3 Nothing in clause 7.1 or 7.2 affects a Customer’s right to claim against Dell for a faulty product under Dell’s Standard Warranty or any Extended Warranty, or under their rights under statute.
8. Standard Warranty
8.1 Nothing in this clause 8 affects a Customer’s rights under New Zealand Consumer Law.
8.2 Unless specified otherwise and in addition to any rights the Customer may have under statute and subject to this clause 8, Dell warrants to the Customer that Dell branded products will be free from defects in materials and workmanship affecting normal use for a period of one year from the invoice date.
8.3 This Standard Warranty does not cover damage, fault, failure or malfunction due to external causes, including accident, abuse, misuse, problems with electrical power, servicing not authorised by Dell, usage and/or storage and/or installation not in accordance with Product instructions, failure to perform required preventive maintenance, normal wear and tear, act of God, fire, flood, war, act of violence or any similar occurrence; Products with missing or altered Service Tags or serial numbers; any attempt by any person other than Dell personnel or any person authorised by Dell, to adjust, repair or support the Products and problems caused by use of parts and components not supplied by Dell.
8.4 Under the Standard Warranty during the one-year period beginning on the invoice date, Dell will repair or replace Products returned to Dell's facility. Dell will ship the repaired or replacement products to Customer freight prepaid.
8.5 Dell does not give any warranty that Products purchased under a Contract other than a Consumer Contract are fit for any particular purpose.
8.6 The Standard Warranty is given in place of all excludable warranties, conditions, terms, undertakings and obligations implied by statute, common law, trade usage, course of dealing or otherwise (except as implied under the New Zealand Consumer Law), including warranties or conditions of merchantability, fitness for purpose, satisfactory quality and/or compliance with description, all of which are excluded to the fullest extent permitted by law.
8.7 The Standard Warranty does not apply to:
(a) Dell-branded goods purchased in an auction;
(b) non-Dell branded products, supplied by Dell and forming part of a Product; and
(c) goods which are not standard Dell assemblies or configurations as defined on Dell's published price list.
8.8 Dell will provide support for non Dell-branded products purchased under a Consumer Contract. Dell does not manufacture its non Dell-branded products, and may not be able to provide repair facilities or spare parts in relation to them. The Customer acknowledges that the reasonable time for Dell to repair non Dell-branded products is longer than the reasonable time for the manufacturer to repair the same product.
8.9 Non Dell-branded products may be accompanied by their manufacturer's standard warranties. The Customer acknowledges that where support is required in relation to non Dell-branded products it may be more efficient and expedient to seek support under the manufacturer's standard warranties, at least at first instance.
8.10 Under the Standard Warranty, Products presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the Products.
9. Service and technical support
Dell will provide general service and technical support to the Customer in accordance with the then-current service and technical support policies in effect. Service and support offerings may vary from product to product. If Customer purchases optional services and support as listed on Customer's invoice, Dell will provide the optional service and support to Customer in accordance with the then-current terms and conditions in the optional service contract between Dell and Customer (available via the Internet on Dell's Web site at http://www.dell.com/learn/nz/en/nzcorp1/terms-conditions-of-services-support or upon request) in addition to the Standard Warranty. Dell may, at its discretion, revise its general and optional service and support programs and the terms and conditions that govern them upon provision of reasonable notice. Dell has no obligation to provide service or support until Dell has received full payment for the Product or service/support contract for which service or support is requested.
10.1 Dell will not be liable in contract or in tort for any loss or damage suffered and the Customer’s rights are limited to those set out in these Terms and Conditions and under statute.
10.2 For goods and services which are not supplied under a Consumer Contract Dell's total liability in respect of each event or series of connected events will not exceed the total price paid for the purchase of products and/or services under these Terms and Conditions.
10.3 The Customer will indemnify Dell and keep Dell fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these Terms and Conditions.
10.4 Dell and the Customer agree that Dell’s liability:
(a) for Products supplied under a Consumer Contract, is governed solely by New Zealand Consumer Law;
(b) for Products not supplied under a Consumer Contract does not extend to any incidental, indirect, special or consequential damages arising out of or in connection with the purchase, use or performance of products or services, even if Dell has been advised of their possibility.
10.5 In the case of Products not supplied under a Consumer Contract, any service response times stated by Dell in the service contracts are approximate only and Dell will not be liable for any direct or indirect loss or damage arising from its failure to meet such response times.
10.6 To the extent permitted by law, any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by Dell will be subject to correction without any liability on the part of Dell.
11. Backup of data
11.1 Products are complex items of equipment that may occasionally fail, due to external causes or internal faults. This failure can result in the loss, corruption, deletion or alteration of software or data (including user-generated data).
11.2 Unless the Customer regularly and continually backs up all data, software and programs, these may be lost or corrupted in the event of failure.
11.3 Customer agrees to regularly and continually back up all data and software stored on the Product, and to complete a backup prior to seeking any general service and technical support from Dell.
12. Use of products
12.1 Dell Products are designed for specific applications and purposes to work under certain operating conditions. These are set out on the Dell website. Customer’s use of the Product other than in accordance with any manual, operating instructions, specified operating conditions or any other information on the Dell website may damage the Product and data stored on it. Such use may adversely affect the Customer’s rights.
12.2 The Customer agrees to only use the Product in accordance with any manual and any specified operating conditions.
13. High risk application disclaimer
The Products are not fault-tolerant and are not designed or intended for use in High Risk Activities. Dell expressly disclaims any express or implied warranty of fitness for High Risk Activities.
14. Business usage
Where Products are bought for business usage the Customer warrants to implement appropriate means and procedures to ensure operational continuity of the business in the event that the Product experiences any performance failures. This may include disaster recovery plans, comprehensive data back up plans and the implementation of redundant networks.
15. Force majeure
Neither party will be liable for any delay in performing any of its obligations under these Terms and Conditions if such delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party will be entitled to a reasonable extension of time for the performance of such obligations.
16. Export restrictions
The Customer acknowledges that the Products licensed or sold hereunder, which may include technology and software, are not only subject to the export control laws and regulations of the United States (U.S.) but may also be subject to the export control laws and regulations of the country in which the Products are received. The Customer agrees to abide by all applicable export control laws and regulations. Under such laws and regulations, the Products purchased may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. In addition, the Products may not be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in activities related to weapons of mass destruction, including but not necessarily limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. The Customer understands that applicable requirements or restrictions may vary depending on the Products delivered and may change over time and that, to determine the precise controls applicable to the Products acquired, it may be necessary to refer to relevant laws and regulations.
17. Governing law
These Terms and Conditions are governed by and construed in accordance with the laws of New Zealand and shall be subject to the non-exclusive jurisdiction of the courts of New Zealand.
18.1 The Customer must not assign or otherwise transfer any Contracts or any of its rights and obligations under these Terms and Conditions whether in whole or in part without the prior written consent of Dell. Any such unauthorised assignment will be deemed null and void.
18.2 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question will not be affected.
18.3 No failure or delay on Dell’s part in exercising any power or right under these Terms and Conditions operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right.
18.4 References to any statutory provision include any statutory provision which amends or replaces it, and any by law, regulation, order, statutory instrument, determination or subordinate legislation made under it.
18.5 In respect of non-Consumer products, the Customer agrees that the provisions of the Consumer Guarantees Act 1993 do not apply to these Terms and Conditions.
rev 21 March 2015