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 consumers, including the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.
Consumer Goods means goods and services acquired by a ‘consumer’ as that term is defined in section 2(1) of the Consumer Guarantees Act 1993 and the Fair Trading Act 1986
Customer means the person or legal entity identified in Dell's Quotation or Invoice.
Dell means Dell New Zealand Ltd.
Dell-branded means computer hardware products that are marked with the Dell brand, including their 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;
(d) third party products that are software, peripherals, monitors, keyboards and mice, unless they are included on Dell’s standard price list.
Products means any standard configuration Dell branded products supplied by Dell to the Customer.
Remedial Support means all reasonable endeavours during Standard Service Hours to restore Products to their proper operating condition.
Replacement Part means a spare part used in repairing products.
Replacement Product means a product provided to replace a Product under these Terms and Conditions.
Service and Support has the meaning given to it in clause 2.
Service Description means a contract between Dell and the Customer to provide additional support beyond that provided for under these Terms and Conditions.
Service Offerings means the different service options offered by Dell for the Products or any part of them and for varying periods, as described in Dell's published literature, including Customer's Invoice and/or Dell's Service Description.
Standard Service Hours means between 9.00 a.m. and 5.00 p.m. each day, except weekends and public holidays. Dell may make additional service hours available at its discretion, in which case it may charge additional fees.
2. Provision of Service and Support - Standard configuration Dell-branded products
During this Agreement, Dell will provide Service and Support in relation to Products as follows:
2.1 Dell will provide the Customer with Telephone Support:
(a) at its sole option;
(b) for as long and for such hours as it may decide; and
(c) on such terms and conditions as it may determine from time to time under clause 4.1.
2.2 Dell will provide the Customer with Remedial Support in the following manner:
(a) If a Customer notifies Dell that the Products have failed or are malfunctioning, and the fault cannot be rectified by Telephone Support, Dell will provide Remedial Support.
(b) The extent of Remedial Support, and whether it is to be provided remotely or by an on-site visit by a Dell engineer, are at Dell’s discretion. In exercising its discretion, Dell will take into account any Service Offering
purchased by the Customer (as indicated on the invoice) or packaged with the Products.
3. Exceptions to Service and Support
3.1 Service and Support is limited as set out in this clause. To the extent that products, which are Consumer Goods provided by Dell, are not covered by Service and Support under these Terms and Conditions, support will be that required under New Zealand Consumer Law.
3.2 Dell will provide repair services that are necessary because of any existing defect or where a defect occurs in materials or workmanship in the system or in any system component covered by these Terms and Conditions. Preventive maintenance is not included. Repairs necessitated by software problems (for software not provided by Dell), or as a result of alteration, adjustment, or repair by anyone other than Dell (or its authorised representatives) are not included.
3.3 Unless expressly provided by mutual agreement of Dell and the Customer in writing and/or by the terms of a Service Description, Service and Support does not include support which is necessitated as a result of any cause other than a result of Dell's neglect or fault, including, without limitation:
(a) failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions; or
(b) accident, transportation, neglect, misuse, abuse or default of or by the Customer, its employees or agents or any third party, including but not limited to broken or cracked plastics; or
(c) any fault in any products or components which are not supplied by Dell, whether or not:
(i) they form part of a Customer's configuration of the Products; or
(ii) they comprise the Customer's configuration and the Products form an integral part of them; or
(d) any fault in attachments or associated products or components (not supplied by Dell) which do not form part of the Products covered by these Terms and Conditions and/or under the relevant Service Offering; or
(e) any fault in attachments or associated products, which are Consumer Goods, supplied by Dell, which do not form part of the Products and are not covered by a Service Offering (support for such products will be that required under the New Zealand Consumer Law); or
(f) any fault in the Products caused by the failure of any products or components not supplied by Dell; or
(g) act of God, lightning, fire, flood, war, act of violence or any similar occurrence; or
(h) any attempt by any person other than Dell personnel or any person authorised by Dell (via the telephone or otherwise) or an authorised Dell sub-contractor, to adjust, repair or support the Products.
3.4 Unless expressly provided by mutual agreement of Dell and the Customer in writing and/or by the terms of a Service Description, Service and Support, as that term is used in these Terms and Conditions, will not be provided for:
(a) Consumer Goods sold by Dell that are not covered by these Terms and Conditions, being:
(i) non-Dell-branded goods, supplied by Dell and forming part of a Product; and
(ii) goods which are not standard Dell assemblies of configurations as defined on Dell's published price list.
Support for these goods is that required under New Zealand Consumer Law.
(b) requests for Service and Support at places other than the Customer's address specified on the Invoice except where Dell specifically agrees otherwise;
(c) the correction or avoidance of software defects or errors or the loading or re-loading of a Customer's application software or the Customer's data or any re-configuration of the Products beyond loading the operating system software (ie basic installation of the operating system and drivers using the factory supplied DVD/CDs) as carried out before shipment. Support for any software that is a Consumer Good provided by Dell is that required under New Zealand Consumer Law;
(d) repair or renewal of diskettes, printing ribbons, typefaces or other consumable supplies (unless the Service Support is provided under the New Zealand Consumer Law);
(e) electrical or other environmental work external to the Products; and
(f) the support of any attachments or associated products which do not form part of the Products.
3.5 Collection of Products by Dell, or its appointed carrier and/or its authorised sub-contractor for the purposes of these Terms and Conditions will not be construed as invalidating the exceptions stated above and will not imply that Dell accepts the validity of any customer's claim.
4. Non Dell-branded Products
4.1 Dell does not manufacture its non Dell-branded products and does not provide service and support under these Terms and Conditions. For non Dell-branded products that are Consumer Goods, support will be provided as required under New Zealand Consumer Law.
4.2 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.
4.3 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.
5.1 Nothing in this clause 5 affects a Customer’s rights under New Zealand Consumer Law.
5.2 Dell reserves the right to replace the whole of the Products or any part or parts which may be found to be faulty or in need of investigation even where only a part of the Products are faulty or in need of investigation, if Dell considers this to be more economical or reasonably necessary.
5.3 Products presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Internal components of Products presented for repair may be replaced by refurbished components of the same type.
5.4 When making a replacement under clause 5.3, Dell may use products or any parts which may or may not be identical in all respects to the faulty Products.
5.5 When making a replacement under clause 5.3, Dell will use products:
(a) equivalent to new in functionality and appearance;
(b) having substantially the same fittings; and
(c) with at least an equivalent specification to the faulty Products or parts.
5.6 Dell reserves the right to supply Products or parts from any manufacturer it may, from time to time, deem appropriate.
5.7 The products or parts supplied to replace the Products will become the property of the owner of the Products. The Products or any part or parts removed from the Products are the property of Dell.
5.8 The warranty term for a Replacement Part is 90 days from its installation in the Product or the remainder of the warranty term for the Product into which it is installed, whichever is longer. The warranty term of a Product is not extended after its repair.
5.9 The Customer has an obligation, both under these Terms and Conditions and under statute, to return Products replaced by a Replacement Product or parts replaced by a Replacement Part.
5.10 The Customer must return the Product or part replaced to Dell within 10 days after the date on which the Replacement Product or Replacement Part was delivered to the Customer by Dell.
5.11 If the Customer does not return the Product or part replaced to Dell by the due date, the Customer must pay Dell for the Product or part replaced at Dell’s then current standard price in New Zealand
5.12 The provisions of these Terms and Conditions apply to all replacements of any part or parts of the Products made by Dell.
6. Customer's obligations
6.1 Nothing in this clause 6 affects a Customer’s rights under New Zealand Consumer Law.
6.2 Under these Terms and Conditions, the Customer must:
(a) provide Dell with full, safe and prompt access to the Products to enable Dell to carry out its obligations under these Terms and Conditions;
(b) provide adequate working space around the Products for the use of Dell's personnel and make available all reasonable facilities as may be requested from time to time by Dell for the storage and safe keeping of any test equipment and spare parts;
(c) use all reasonable endeavours to provide a suitable vehicle parking facility for use by Dell's personnel which is not used for any other testing, diagnostic and remedial purposes at the Customer's expense;
(d) use all reasonable endeavours to provide a suitable vehicle parking facility for use by Dell's personnel which is free from any legal restrictions and which is immediately close to the location;
(e) ensure, in the interest of health and safety, that Dell's personnel are met promptly by a member of the Customer's staff and while on the Customer's premises for the purposes of these Terms and Conditions, are at all times accompanied by a member of the Customer's staff familiar with the Customer's premises and safety procedures;
(f) make available to Dell, free of charge, all facilities and services reasonably required by Dell to enable Dell properly to provide Service and Support; and
(g) provide such telecommunication facilities as are reasonably required.
6.3 Under these Terms and Conditions, the Customer must:
(a) make sure that proper environmental conditions (in particular those (if any) defined in the relevant Product user manuals) are maintained for the Products and must further maintain in good condition the place where the Products are situated, the cables and fittings to the Products and associated with the Products, and the electricity supply to the Products;
(b) other than discrete additions generally recognised as being compatible with the Products, not make any modifications to the Products without Dell's prior consent;
(c) ensure that the Products are used in a proper manner, in accordance with the Product user manuals and by competent, trained employees only or by persons under their supervision.
(d) ensure that the external surfaces of the Products are, where appropriate, kept clean and in good condition and will carry out any minor maintenance requirements recommended by Dell (or recommended in the relevant Product user manual) from time to time;
(e) other than as set out in these Terms and Conditions, and except when operating under:
(i) a Dell Agreement or in accordance with a Service Offering which provides otherwise; or
(ii) under instructions from the Dell Telephone Support;
not attempt to adjust, repair, support or maintain the Products and will not request, permit or authorise anyone other than Dell or the manufacturer of the Products (where such Products are under a warranty from a manufacturer other than Dell) to carry out any adjustments, repairs, support or maintenance of the Products;
(f) use on or with the Products only such accessory, attachment, component or additional equipment or products as Dell recommends, or are recommended in accordance with the Product user manuals, or are commonly and properly used on or with the Products;
(g) not use in conjunction with the Products any accessory, attachment, component or additional equipment or products other than those which have been supplied or approved by Dell for use in the manner proposed, or which are specifically approved as compatible by the relevant Product user manuals;
(h) subject to the Customer’s rights under New Zealand Consumer Law, promptly notify Dell if the Products need service or are not operating correctly. Failure by the Customer to notify Dell within 2 weeks of the Customer becoming aware of such failure or incorrect working may cause the failure or incorrect working to become worse. Dell’s obligations under these Terms and Conditions do not extend to Service and Support for failures that are the result of a failure to promptly notify Dell;
(i) make available to Dell, free of charge, such information as may be necessary to enable Dell properly to conduct telephone diagnosis as part of the Dell Telephone Support service, and in addition, such programs, operating manuals and information to enable Dell properly to perform its obligations under these Terms and Conditions and will use its best endeavours to provide staff familiar with the Customer's programs and operations, which staff will co-operate fully with Dell personnel operating Dell's Telephone Support or present on-site, as the case may be, in the diagnosis of any malfunction of the Products;
(j) keep full security copies of any of the Products comprising Software and of the Customer's programs, databases and computer records in accordance with best computing practice and in any case before requesting Service and Support from Dell. The Customer acknowledges that they are responsible for re-loading their own application software after any such Services have been provided. It is the Customer's responsibility to backup data on the system.
7. Service and Support
7.1 Nothing in this clause 7 affects a Customer’s rights under New Zealand Consumer Law. To receive Service and Support, the Customer must follow these steps:
(a) The Customer can help the technician serve better if the Customer has the following information and materials ready when the call is made:
(i) the Customer System's Invoice and serial numbers;
(ii) service tag number;
(iii) model number;
(iv) the current version of the operating system being used; and
(v) the brand names and models of any peripheral devices (such as a modem, printer or scanner) being used.
(b) The Customer should describe the problem the Customer is having with the System. Let the technician know what the error message is and when it occurs, what was being done when the error occurred and what steps have already been taken to solve the problem.
(c) Listen carefully to the technician and follow the technician's directions.
(d) If the technician is unable to resolve the problem over the phone, the technician will recommend to the Customer the next course of action to be taken. If the Customer does not follow the steps in this clause 7, Dell may be unable to provide prompt and efficient Service and Support.
7.2 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 alternation of software or data (including user-generated data). Unless the Customer regularly and continually backs up all data, software and programs, these may be lost or corrupted in the event of a failure. The Customer agrees to regularly and continually back up all data and software stored on the Product, and complete a backup prior to seeking Service and Support under these Terms and Conditions.
8.1 In the case of non Consumer Goods, Dell warrants that services will be performed in a good and workmanlike manner. Except as expressly stated in the preceding sentence, Dell makes no express or implied warranties with respect to the services, including but not limited to any warranty relating to third party products, and performance with respect to the performance of any hardware or software used in conducting services, any express or implied warranties concerning the results to be obtained from the services of the results of any recommendation Dell may make, including without limitation any implied warranties concerning the performance, merchantability, suitability, non-infringement of fitness for a particular purpose of any of the deliverables or of any system that may result from the implementation of any recommendation Dell may provide. Nothing in this agreement or any other written documentation or any oral communications with the Customer may later alter this clause.
8.2 In the case of Consumer Goods, Dell warrants that Service and Support will be performed with due care and skill in accordance with the requirements of consumer protection legislation, including New Zealand Consumer Law. Dell otherwise makes no express or implied warranties with respect to the services. Nothing in these Terms and Conditions or any other written document or any oral communications with the Customer may later alter this clause.
8.3 In the case of non Consumer Goods, Dell will not be liable for any loss or damage sustained or incurred by the Customer or any third party (including without limitation any loss of use of the Products or loss of or spoiling of any of the Customer's programs or data) resulting from any fault in the Products, unless such fault is caused by the negligence or wilful misconduct of Dell, its employees, agents or sub-contractors, or to the extent that such loss or damage arises from any negligent delay by Dell in providing the particular Services purchased by the Customer and then only to the extent not excluded by these Terms and Conditions.
8.4 The Customer must 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 willful 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.
8.5 In the case of non Consumer Goods, except in respect of injury to or death of any person, for which no limit applies, Dell's total liability to the Customer under these Terms and Conditions in respect of each event or series of connected events is limited to the amount paid by the Customer for the relevant Services (which gives rise to the claim) purchased by the Customer as evidenced on the Invoice.
8.6 In the case of Consumer Goods, Dell's total liability to the Customer under these Terms and Conditions is limited to that required under New Zealand Consumer Law, or any other statute.
8.7 Any service response times stated by Dell in the Service Offerings are approximate only and will not form part of these Terms and Conditions. Dell will use all reasonable endeavours to meet the stated response times, however Dell will not be liable for any direct or indirect loss or damage arising from its failure to meet such response times, however caused, as long as Service and Support is provided within a reasonable time.
8.8 In the case of non Consumer Goods, notwithstanding anything else contained in these Terms and Conditions, Dell will not be liable to the Customer for loss of business, profits or contracts or other indirect or consequential loss whether arising from negligence, breach of contract or any other means.
8.9 Some Services may require Dell to access hardware or software that is not manufactured by Dell. Some manufacturers' warranties may become void if Dell or anyone else, other than the manufacturer or its authorised representative, works on the hardware or software. Dell does not take responsibility for third party warranties or for any effect that the Dell services may have on those warranties, if Dell has substantially followed the third party's instructions.
Except as otherwise expressly provided for in these Terms and Conditions, no forbearance, delay or indulgence by either party in enforcing the provisions of these Terms and Conditions will prejudice or restrict the rights of that party, nor will any waiver of its rights operate as a waiver of any subsequent breach, and no right, power or remedy conferred upon or reserved for either party, is exclusive of any other right, power or remedy available to that party and each such right, power or remedy will be cumulative.
Dell has the right to subcontract the Services provided under these Terms and Conditions to any of its authorised service providers.
If any provision of these Terms and Conditions (including terms contained in a relevant Service Offering) is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions and the remainder of the provisions in question will not be affected.
12. Statutory Provisions
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.
13. Consumer Guarantees Act
In respect of non-Consumer products, the Customer agrees that the provisions of the Consumer Guarantees Act 1993 does not apply to these Terms and Conditions.
14. 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.
Rev 21 March 2015