BRAINWORX NEW ZEALAND LIMITED – TERMS AND CONDITIONS
Brainworx New Zealand Limited (“Brainworx”, “we” or “us”) agrees to supply customised software (“Software”), products (“Products”) and services (“Services”) to you, the Customer, in return for payment of the price for those Products and Services and according to these Terms and Conditions. Acceptance of delivery or receipt of any Software, Products or Services will (notwithstanding any statement to the contrary by you or your employees or agents) constitute acceptance of these Terms and Conditions. If there is more than one of you, your liability is joint and several.
1. Price and Payment
1.1 All prices exclude GST, any other applicable taxes and duties and insurance/freight/delivery/handling charges not expressly included in the price. You agree to pay these items (as applicable) in addition to the price, whether they are imposed before or after your order.
1.2 Payment must be made in cash prior to delivery of your order and provision of the Services unless we agree otherwise in writing. If we allow you credit, payment in full is due on the 7th day after the date of our invoice. We can impose a credit limit on you (or refuse to allow you any credit) at any time, and alter it at our sole discretion.
1.3 You must not withhold payment or make any deductions of any nature whether by way of set off (legal, equitable or otherwise), counterclaim or otherwise from any amount you owe us. Any default in payment shall make all money payable by you to us immediately due and we may withhold or terminate delivery of Software and Products and/or provision of Services until you provide payment of all money payable by you to us. In the event of such termination, you will remain liable in full for any amounts payable to us as at the date of termination (whether or not we have invoiced you for such amounts).
1.4 If you do not pay any monies owed to us (“the unpaid monies”) when due, we may charge penalty interest at a rate of 20% per annum calculated daily and capitalised monthly on the unpaid monies from the due date until payment in full is made (including after as well as before any Court judgment).
1.5 You indemnify us for and agree to pay, on demand, all costs incurred by us (including legal costs on a solicitor-client basis and debt collection costs) in the recovery or attempted recovery of unpaid moneys and/or the enforcement of these Terms and Conditions or the Security Interest contained in these Terms and Conditions.
1.6 Brainworx reserves the right to alter its pricing structure for any Products, Software and/or Services from time to time. Where such change relates to ongoing licence fees or Services, we will inform you of any changes to the pricing structure by sending a letter or by any other appropriate means. We will endeavour to notify you of any changes to the pricing structure at least 30 days before the change is due to occur.
2. Term of Services
2.1 Unless otherwise agreed or specified in writing, the term of any contract between the parties for provision of Services will continue until written notification is received from either party indicating otherwise. Each party agrees to give 30 days prior written notice to the other party to terminate any contract for provision of Services. In the event of such termination, you will remain liable in full for any amounts payable to us as at the date of termination (whether or not we have invoiced you for such amounts). For the avoidance of doubt, this clause does not affect the provisions that relate to your breach of any of these terms and conditions.
3. Delivery and Risk
3.1 Risk in Products sold to you will pass to you on Delivery being the time the Products are dispatched from our premises to you, whether the Products are delivered to your address by us or uplifted from us by you or by a carrier arranged by you or us.
3.2 If any of the Products are damaged or destroyed prior to ownership of them passing to you, we are entitled, without prejudice to any of our other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the price for the Products), to receive all insurance proceeds payable in respect of the Products whether or not the price has become payable under these terms and conditions. The production of these terms and conditions by us is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries.
3.3 Any date or time stated for dispatch is an estimate only and not to be treated as a condition of sale.
3.4 If the consent of your landlord is required for the installation of any Products, you must obtain this consent before installation occurs.
4. Security Interest
4.1 Ownership of all Products supplied to you by us will not pass on Delivery, but will remain with us until we have received full payment in clear funds of all moneys you owe us (whether relating to those Products, the supply of Services, or any other property supplied). We hold a Security Interest in all Products supplied to you and the proceeds of any resale of the Products for payment of those moneys.
4.2 Until all moneys due to us are paid by you, you agree to act as a fiduciary of us and that you will not sell, charge or part with possession of the Products, otherwise than for their full value in the ordinary course of business, and that you will hold the proceeds of the resale of the Products in trust for us, in a separate and identifiable manner.
4.3 At our request, you will promptly deliver, execute or do (or cause to be executed, delivered or done) any documents, contracts, agreements, deeds or other action that we may require from time to time to give effect to these Terms and Conditions, including without limitation doing all such things as we may require to ensure that the Security Interest created under these Terms and Conditions constitutes a perfected Security Interest over the Products. This includes, but is not limited to, providing any information we request to complete a financing statement or a financing change statement for the Personal Property Securities Register.
4.4 Where you are in default, you agree to Brainworx entering your premises or any other place where the Products are located, or where Brainworx reasonably believes that the Products are located, and taking possession of and selling the Products even if Brainworx does not have priority over other persons having a Security Interest in the Products.
4.5 You waive any right to receive a verification statement under the PPSA.
4.6 Nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions. Your rights as a debtor in sections 116, 120(2), 121, 125-127, 129 and 131 of the PPSA shall not apply to these Terms and Conditions.
4.7 We are entitled at any stage during the continuance of this Agreement to request such security or additional security as we in our sole discretion think fit and shall be entitled to withhold supply of Software, Products or Services or credit arrangements until such security or additional security shall be obtained.
4.8 We may issue proceedings to recover payment for the Products notwithstanding that ownership of the Products may not have passed to you.
5. Software and Intellectual property
5.1 In relation to the provision of any Products, Services and Software by Brainworx, you agree to the following:
(a) All and any right, title and interest and all intellectual property rights (including without limitation copyright) in such Products, Services and Software will be and remain the property of Brainworx or its licensors or suppliers. To the extent that the Copyright Act 1994 does not vest copyright in any Products, Services or Software (where not already owned by a third party) you hereby assign to Brainworx all right, title and interest in such Products, Services and Software;
(b) You agree not to challenge or attack the validity of, nor challenge the rights of Brainworx in relation to the intellectual property referred to in clause 5.1(a) as being the property of Brainworx; and
(c) You will not supply any item or information for use by Brainworx in breach of any obligation of confidentiality owed to or any intellectual property rights belonging to any third party. You agree to indemnify and hold Brainworx harmless against all losses, claims, or any expenses suffered by Brainworx as a result of any breach of this clause 5.1(c).
5.2 We will provide you with a non-exclusive, non-transferable licence to use any Software that we supply to you, on the following basis:
(a) You will use the software supplied by Brainworx in accordance with the documentation provided by Brainworx and only for the number of users permitted and will inform Brainworx should you require any additional licences;
(b) You will not copy any Software and you will not utilise any backup copy unless the original Software is corrupted or lost;
(c) You are not entitled to resell or transfer any Software;
(d) You will not reverse engineer, disassemble, decompile, modify, adapt, or otherwise attempt to discover the source code of any Software;
(e) You are not entitled to assign, rent, lease or lend any Software without the prior written consent of Brainworx;
(f) You will return all copies of any Software or destroy copies of any Software should you be required to do so for either not complying with these terms or conditions or due to termination occurring;
(g) Any Software labelled as an upgrade replaces and/or supplements and may disable the original software provided by Brainworx that formed the basis of the upgrade. Any upgraded software is subject to these terms and conditions; and
(h) In conjunction with clause 4.1, you acknowledge that all title in the Software and all intellectual property rights in the Software (including but not limited to any code, images, animations, photographs, video, audio, music, text and applets) and any accompanying materials and copies accessed through this material, is and shall remain the property of Brainworx.
5.3 Where we supply you with third party Software, you agree to use such third party Software strictly on terms of the licence under which it is supplied.
6. Confidential Information
6.1 Each party will:
(a) ensure that all information, including but not limited to plans, reports, opinions, projections and network recommendations contained in any document or electronic storage system which includes confidential information of the other party (“Confidential Information”) is kept strictly confidential and neither party will use the contents of such Confidential Information in any way other than for the purpose for which the information was disclosed, nor use such confidential information for any purpose other than that for which it was provided. If uncertain you agree to obtain permission from Brainworx.
(b) Each party agrees to return to the other party on demand, all Confidential Information in whatever form (including all copies) that is in the former party’s control.
(c) Each party shall take all reasonable care to ensure that all materials in its possession that contain Confidential Information are kept secure.
7.1 Brainworx warrants that:
(a) it is the sole owner of the Software, or otherwise has the right to supply the Software, and that the Software does not infringe the Intellectual Property Rights of any third party; and
(b) all Services will be provided in a careful and skilled manner.
(a) will not be responsible for the compatibility of any Products or Software with other products or software unless Brainworx has expressly agreed otherwise in writing; and
(b) does not warrant that any Products, Software or Services will be 100% free of faults nor that the operation of the said Products, Software and Services will be continuous.
7.3 You must ensure that:
(a) any information you have given us is correct and complete;
(b) any directions given by us regarding the use of the Products, Software and Services are followed;
(c) the Products, Software and Services are used for lawful purposes; and
(d) any user of the Products, Software and Services complies with these terms and conditions.
7.4 If you are in trade and are acquiring the Products or Services for business purposes, the guarantees under the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply.
7.5 Subject to clause 5.1, unless you have rights under the Consumer Guarantees Act 1993 or other legislation, which cannot be excluded or limited, there are no warranties express or implied. This disclaimer includes implied warranties as to merchantability and fitness for a particular purpose.
7.6 Where we supply you with third party Products, once you have paid us for the Products we will pass on to you the benefit of any manufacturer’s warranty that applies to the Products, without being directly liable to you under any such warranty.
8. Limitation of Liability
8.1 We are not liable to you for any loss or damage arising from delay or failure to perform our obligations due to any matter beyond our reasonable control.
8.2 We and our employees and agents shall not be liable to you for any claim for breach of Contract (except as provided in clause 6.3 below) or Statute or breach of duty in Tort (including negligence) or for any claim in Equity or otherwise at law.
8.3 Your sole remedy against us shall be limited to breach of contract and the extent of any such liability shall be limited, at our option, to refunding the price paid for the particular Products and/or Software to which the breach relates, repairing or replacing the Products and/or Software, or paying the cost of repairing or replacing the Products and/or Software or acquiring equivalent Products and/or Software. If the breach relates to Services the extent of any such liability shall be limited, at our option, to refunding of the price paid for the particular Services to which the breach relates, supplying the Services again, or paying the cost of having the Services supplied again. We will not, in any case, be liable for any other losses or damages whether general, special, exemplary, punitive, direct, incidental, indirect or consequential, including without limitation loss of business information, business interruption, or loss of business profits, even if advised of the possibility of such damages.
8.4 No action may be brought against us unless notice of such claim is given to us within one month of delivery of the Products and/or Software, or provision of the Services. We shall be released from all or any liability unless proceedings are brought in a Court of competent jurisdiction within one year of the date of delivery of the Products and/or Software or provision of the Services.
9. Use of information
9.1 If you are an individual, you authorise Brainworx to collect information in about you for the purpose of statistical analysis, research, assessing your present and continued credit worthiness and, if necessary, collecting any outstanding debt from you and for direct marketing activities (‘the purposes set out above’). You consent to us disclosing the information, as well as any default in payment by you, to any credit or debt collection agency, and to any person/agency we appoint to collect any outstanding debt from you, if necessary, for the purposes set out above.
9.2 If information is provided to any credit or debt collection agency, they will hold that information on their systems and use it to provide their credit reporting service, including updating their credit reporting database and providing that information to other customers they have. You consent to that use and disclosure. We may request, and any person or organization (including any credit or debt collection agencies) may provide, information about you to us, both now and in the future, for the purposes set out above and you consent to us seeking that information in the course of our business and disclosure of that information to us.
9.3 If you are an individual, you have the right under the Privacy Act 1993 to see and correct any personal information held by us or any agency about you pursuant to these Terms.
10. General Provisions
10.1 These terms apply to all transactions where we supply Products, Software or Services to you. If there is any inconsistency between these terms and any order submitted by you or any other arrangement with us, these terms prevail unless otherwise agreed by us in writing.
10.2 If any provision of these terms and conditions is held by any court to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining provisions.
10.3 This contract and its terms are governed by, and shall be construed in accordance with, the laws of New Zealand. Both parties submit to the exclusive jurisdiction of the New Zealand Courts.
10.4 We may review and change these terms and conditions at any time and from time to time. Any such change will take effect from the date on which we notify you of the change.