Terms of Trade

 

SWARM INTELLIGENCE LIMITED

 

 

BACKGROUND

 

Swarm Intelligence Limited is in the business of providing engineering related products and consultancy services.

The Customer has requested that Swarm Intelligence Limited provide products and/or services to it.

Swarm Intelligence's agreement to provide and the Customer's agreement to purchase the products and/or services is set out in these terms and conditions.

 

1.Definitions

 

1.1In these terms and conditions:

 

(a)“Customer", “you” and “your” means the person, firm, company or entity purchasing Products and/or Services from us.

 

(b)“Default Interest Rate” means 15 per cent per annum.

 

(c)“GST” means goods and service tax as defined in the Goods and Services Tax Act 1985 and any amendment or replacement thereof.

 

(d)“Intellectual Property Rights” includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), trade marks, designs, circuit layouts, domain names, rights in databases, confidential information, trade secrets, know-how, and all other proprietary rights, whether registered or unregistered, and all equivalent rights and forms of protection anywhere in the world, together with all right, interest or licence in or to any of the foregoing.

 

(e)“Order” means in relation to:

 

(i)Products, any order for the supply by us to you of Products; and/or

 

(ii)Services, any request for provision of Services.

 

(f)“Personnel” means our personnel (including employees and contractors) used to provide any Products and/or Services.

 

(g)“Price” means the price for the supply of Products and/or provision of Services, pursuant to an Order.

 

(h)“Product” means any product or part sold by us to you pursuant to an Order (including, without limitation, as part of the provision of Services).

 

(i)“Quote” means a quote for the provision of Products and/or Services.

 

(j)"Services" means all electrical consultancy services provided by us to you pursuant to an Order

 

(k)“Shipping Address” means the address you specified in the “request a quote” form for delivering a Product.

 

(l)“Swarm Intelligence”, “we", "our" and "us" means Swarm Intelligence Limited.

 

(m)“Working Day” means any day of the week other than a Saturday, Sunday or a public holiday (as defined in the Holidays Act 2003) in Christchurch, New Zealand.

 

2.Construction of the contract

 

2.1Application of terms:  These terms and conditions:

 

(a)apply to any and all:

 

(i)Quotes given by or on our behalf;

 

(ii)any Order or any other dealings with us;

 

(iii)Products and/or Services provided by us;

 

(b)replace any previous versions of terms or agreements issued by us, in their entirety;

 

(c)continue to apply as between us and you where you instruct us to provide you with Products and/or Services and no new agreement is entered into between us and you; and

 

(d)apply to the exclusion of all and any terms put by or on your behalf to us as part of any Order or Quote.

 

2.2Terms prevail:  To the extent that any Order submitted by you attempts to include terms that are inconsistent with these terms and conditions, those terms will not apply and these terms and conditions will prevail.  Any additional or different terms, included in any document submitted by you will be of no effect unless expressly agreed to in writing by us.

 

2.3Acceptance of terms:  Your acceptance of any Quote for Products and/or Services supplied by us, indicates acceptance of these terms and conditions.

 

3.Quote for products and/or services

 

3.1Request for quote:  To request a Quote for Products and/or Services, you must:

 

(a)provide a full and accurate description of the Products and/or Services you require; and

 

(b)deliver the Quote to us:

 

(i)by post or delivery to 2B Michelle Road, Sockburn, Christchurch; or

 

(ii)email at office@swarmiq.co.nz; or

 

(iii)by fax at (03) 343 1118.

 

3.2Status of quote:  We will, at our discretion, assess the request for a Quote.  We are not bound to supply you a Quote.

 

3.3No liability:  We are not liable to you for any costs, losses, damages and expenses whatsoever you may suffer or incur arising out of or in connection with, directly or indirectly, any errors or omissions in a Quote we prepare in reliance on information you provide us.

 

3.4Validity of quotes:  Quotes are valid for 30 days from the date of the Quote (the "Validity Period").

 

3.5Acceptance of quote:  To accept a Quote you must confirm to us, within the Validity Period, in writing your acceptance by any of the methods prescribed in clause 3.1above.  We will not process your order until we have received your acceptance in accordance with the requirements of this clause.

 

4.Orders

 

4.1Acceptance of order:  We are not obliged to accept any Order and we will not be bound by or be deemed to have accepted any Order if we process your payment, unless we expressly confirm our acceptance of the order in writing.

 

4.2Cancellation of order for products:  If we confirm our acceptance of an Order but we cannot supply the ordered Product or carry out the ordered Services, we will contact you to inform you of the same.  In respect of Products, if you do not wish to order alternative Products, we will cancel your Order and we will refund to you the Price.  You cannot cancel an Order for Products unless we agree, subject to you indemnifying us against all actual, prospective, consequential, direct and indirect costs, losses, damages and expenses arising out of or in connection with the Order or the cancellation of the Order.

 

5.Personnel and subcontracting in respect of services

 

5.1Personnel requirements:  We shall:

 

(a)be responsible for all Personnel;

 

(b)ensure that the number of Personnel is adequate to provide the Services;

 

(c)ensure that all Personnel are properly educated, trained, skilled, experienced and fully qualified to provide the Services; and

 

(d)ensure that all Personnel comply with:

 

(i)all protocols, policies, codes of conduct and/or procedures (including any changes or updates to such protocols, policies, codes of conduct and/or procedures) specified by you from time to time acting reasonably; and

 

(ii)our under these terms and conditions.

 

5.2Subcontracting:  We will not subcontract any third party to provide all or any part of the Services unlessthe subcontractor has been approved by you (such approval not to be unreasonably withheld or delayed).

 

5.3Effect of subcontracting:  The entry by us into a subcontract will not relieve us from liability for the performance of any obligations under these terms and conditions.

 

6.Delay

 

6.1Completion:  Any time for completion of the Services or delivery of Product shall be approximate only and shall not be deemed to be of the essence of these terms and conditions.

 

6.2No penalty:  While we will use all reasonable endeavours to ensure that the Services and/or Products are provided by any agreed date, no penalty will be imposed on us nor will a reduction in the Price payable be available on the grounds of our failure to meet a specified completion date.

 

6.3Delay due to you:  If the provision of Services is delayed by reason of or as a result of any act, omission, default or request by or on behalf of you, we may, without prejudice to our other rights and remedies, require payment by you of such portion of the Price as represents the extent to which we have performed the Services up to the date such payment is required together with the any expenses or additional costs incurred by us as a result of such delay.  In the event of such delay continuing beyond a reasonable time, we may, without prejudice to our other remedies, terminate these terms and conditions.

 

7.Intellectual Property Rights

 

7.1Ownership:  The following ownership arrangements for Intellectual Property Rights will apply:

 

(a)all Intellectual Property Rights of either of us or any of our respective licensors that are not developed, commissioned or created under or in connection with these terms and conditions ("Existing Intellectual Property Rights"), but are used for the purposes of the provision of the Products and/or the Services, will be owned by that party or the relevant licensor; and

 

(b)all new Intellectual Property Rights that are developed, commissioned or created under or in connection with the provision of the Products and/or Services, including all Intellectual Property Rights in modifications, adaptations and additions to the Existing Intellectual Property Rights of a party that are developed, commissioned or created under or in connection with provision of the Products and/or Services, will be owned by us as such rights arise.

 

7.2Warranty:  You warrant, undertake and represent to us that you are entitled to supply to us all information, rights and materials that you supply to us in connection with these terms and conditions and that the possession and use of such information, rights and materials by us to provide the Products and/or Services will not infringe the Intellectual Property Rights of any third party.

 

7.3Indemnity:  Each party (the “first party”) indemnifies the other party (the “second party”) against all liabilities, damages, expenses and losses (including legal costs) arising from any claim or proceeding brought against the second party to the extent the claim or proceeding is based on an allegation that the second party’s possession or use of any information, rights or materials supplied by the first party under these terms and conditions, infringes any third party's Intellectual Property Rights ("IP Claim").  In the event of an IP Claim:

 

(a)the second party shall promptly notify the first party of the IP Claim and not make any admission or purport to settle the claim without the first party’s prior written consent (such consent not to be unreasonably withheld);

 

(b)the second party shall provide such assistance as the first party reasonably requests in relation to the IP Claim (including making its employees available to give evidence), provided the first party reimburses the second party’s reasonable costs of such assistance;

 

(c)the first party shall defend or settle the IP Claim (at the first party's cost), but in all cases shall:

 

(i)consult with and keep the second party informed in relation to the IP Claim;

 

(ii)obtain the second party's prior written consent to any proposed settlement of the IP Claim (such consent not to be unreasonably withheld); and

 

(iii)use best endeavours to ensure that the second party's name and reputation are not adversely affected by any steps taken in relation to the IP Claim; and

 

(d)the first party shall take all necessary steps to minimise the detrimental impact of any IP Claim on the Products and/or Services and the second party's operations (including altering or replacing the relevant equipment, software, documentation or other materials in which the relevant Intellectual Property Rights exist or obtaining the necessary rights for the first party and the second party to use or otherwise enjoy the benefit of those items).

 

8.Permission to Modify or Copy

 

8.1Reproduction:  You shall not copy or reproduce the Products and/or Services by any means or in any form without our prior written consent.

 

8.2Restrictions:  You shall not reverse compile, reverse engineer, or reverse assemble the Products and/or the Services.

 

8.3Non-Disclosure:  You shall not disclose, disseminate, transmit via any medium whatsoever, or make available the Products and/or the Services, or any portion, modification, alteration or derivation of the Products and/or the Services, to third parties without our prior written consent.

 

8.4Modifications:  You shall not modify or alter the Products and/or Services or merge all or any part of the Products and/or Services without our prior written consent.

 

9.prices

 

9.1Price:  Unless otherwise stated, the Price for a Product and/or Service is exclusive and net of any taxes and duties (including, without limitation, any taxes and duties payable in the jurisdiction in which you reside for tax purposes) and goods and services tax or value added tax (if any) and any additional charges (such as shipping costs).  You are responsible for payment of all such taxes, duties, goods and services tax or value added tax and any additional charges, in addition to the Price.  For the avoidance of doubt, if you are a New Zealand resident purchasing a Product or Service in New Zealand, the amount payable by you will be the Price, any additional charges (including, without limitation, shipping costs), any GST and other taxes and duties (if any).

 

9.2Variation of Price:  We reserve the right to change any Price for a Product and/or Service after we provide you with a Quote but before you accept the Quote, ifadditional labour or parts are required that were not specified in the original Quote.

 

10.payment

 

10.1Invoices:  We will issue an invoice for the Products and/or Services provided in the previous month.  Each invoice will:

 

(a)be in the form of a valid tax invoice for GST purposes;

 

(b)be in a form, and delivered by the method, reasonably requested by you from time to time; and

 

(c)describe in adequate detail the Products and/or Services that are the subject of the invoice.

 

10.2Payment:  You shall pay us the amount payable in respect of each invoice issued under clause 10.1 by the later of the 20th day of the month following the month to which the invoice relates or 10 Working Days after you receive the invoice.

 

10.3Set-Off:  Any payment received from you may be applied by us to all or part of the amount owing for any Product and/or Services as we see fit irrespective of whether that payment is intended by you  to be for particular Products and/or Services or in respect of a particular invoice.  This clause 10.3 and 10.4 below shall apply to any payment received from you irrespective of whether that payment is intended by you to be for particular goods or in respect of a particular invoice.

 

10.4Products:  Any payment received from you that is not applied by us under clause 10.3 shall first go towards satisfying your obligation to pay for Products that, at the time of payment, have been sold by you.  The balance (if any) shall go towards satisfying your obligation to pay for Products that have not been sold by you.  This provision shall apply irrespective of the order in which Products have been delivered to you, any entry contained in a statement of account issued by us, any rule of law or any other matter.

 

10.5Default interest:  If you fail to pay any money payable under these terms and conditions by the due date for payment, then interest shall be payable on the amount unpaid from the due date for payment until actual payment (after as well as before judgment), at a rate equal to the Default Interest Rate, calculated on a monthly compounding basis.  In addition to default interest, you will be liable for all debt collection costs, including legal costs (on a solicitor/client basis), incurred by us in recovering any outstanding amounts payable by you pursuant to the Agreement.

 

10.6Termination:  If you default in the due payment of any moneys payable to us, whether under the Agreement or otherwise, or if you are in default in the performance of your obligations under the Agreement or any other agreement between us and you, or if we deem your credit to be unsatisfactory, we may at our option, without prejudice to any other right we have at law or in equity, suspend or terminate the Agreement, and payment for the Products and/or Services provided and work in progress up to the date of such suspension or termination and any other moneys payable hereunder shall immediately become due and payable.

 

11.Delivery

 

11.1Place of delivery:  We will deliver the Products you Order to the Shipping Address.  Once your Order has been prepared for delivery or the Product has been delivered, we are unable to change the Shipping Address.  If a Product is returned to us as undeliverable, we will contact you to make arrangements for reshipment.

 

11.2Deemed delivery:  A Product will be deemed to be delivered from the time we give possession of the Product to a carrier for delivery, whether arranged by us or you.

 

11.3Cost of delivery:  You must pay for the cost of delivery of the Product.

 

11.4Delay in delivery:  We will not be liable to you for any costs, losses, damages and expenses you may suffer or incur arising out of or in connection with, directly or indirectly, any delay in the delivery of a Product.

 

12.Title and risk

 

12.1Title and risk:  Title and risk of loss of aProduct will pass to you on delivery.

 

12.2Insurance:  We will forward theProduct with a carrier uninsured unless you instruct us otherwise.  You are responsible for insurance for full replacement value of a Product, from the time of delivery.

 

13.Property

 

13.1PPSA:  Unless the context otherwise requires terms and expressions in this clause 13 that are defined in the Personal Property Securities Act 1999 (“PPSA”) shall have the same meaning in this clause 13as in the PPSA and references to the goods include references to any one of them.

 

13.2Security Interest:  You grant us a security interest in any Product as security for all amounts owing by you to us and performance of your obligations under these terms and conditions.

 

13.3Identification:  You shall ensure that you are always able to identify:

 

(a)the Products from any other Products that may be in your possession; and

 

(b)the particular Products to which any invoice relates.

 

13.4 Title:  Title to the Products shall remain in us until there are no longer any amounts owing to us by the you.

 

13.5 Returns and Deposits:  Until title to any particular Product passes to you, you shall:

 

(a) return those Products to us on request; and

 

(b) deposit any cash proceeds of those Products for us in a separate account named the “Swarm Intelligence Proceeds Account” and notify the bank where that account is held of our interest in the moneys in that account.

 

13.6 Compliance:  If you fail to comply with any term of these terms and conditions or any other agreement between us and you, our or our agent may, in addition to any other rights and remedies either of them may have at law (including under any statute), enter any land or building owned, occupied, or used by you, to search for and re-take possession of the Products.

 

13.7 Enforcement:  You agree that sections 114(1)(a), 133 and 134 of the PPSA shall not apply on the enforcement by us of any security interest created or provided for by these terms and conditions.  You also waive any rights you may have under sections 116, 119, 120(2), 121, 125, 129 and 131 of the PPSA on such enforcement.

 

13.8Acknowledgement:  You acknowledge receipt of a copy of these terms and conditions and waive any right you may have to receive from us a copy of any financing statement, financing change statement or verification statement that is registered, issued, or received at any time in relation to these terms and conditions.

 

13.9Change of Name:  You will not change your name without giving us 20 Working Days’ notice of what your new name will be.

 

13.10Costs:  You shall pay all costs and expenses of us in relation to compliance with any demand given by you under section 162 of the PPSA, or in relation to any application for, or the obtaining of, a court order to maintain any registration in respect of any of the security interests created under these terms and conditions and the serving of any such court order on you or the Registrar of Personal Property Securities.

 

13.11Inventory:  When there are amounts owing by you to us, you shall, at our request, promptly provide a written inventory of any dealings with the Products, including details of those Products that have:

 

(a)been sold by you;

 

(b)become an accession; or

 

(c)been so manufactured, processed, assembled, or commingled that their identity has been lost.

 

Where you have previously provided an inventory to us any subsequent inventory need only include details of any dealings with the Products since the most recent inventory.  If requested by us an inventory shall also include the amount and location of any proceeds that you are at that time holding on trust for us.

 

13.12Sale of Products:  Notwithstanding that property in the Products is retained by us, you are hereby authorised to sell the Products in the ordinary course of business.  Such authority:

 

(a)may be revoked by written notice from us at any time if we deem your credit to be unsatisfactory or you are in default in the performance of your obligations under these terms and conditions or any other contract between us and you; and

 

(b)shall be deemed automatically revoked if you enter into any composition or arrangement with your creditors, pass a resolution for your  liquidation or the appointment of a voluntary administrator or a liquidator, voluntary administrator or receiver is appointed.

 

14. Warranty

 

14.1We warrant our Products (including Products provided as part of Services) against defects under normal use for a period of three months from the date of delivery of the Product.  The benefit conferred by this warranty is in addition to all rights and remedies available to you under any consumer protection laws and regulations applying in respect of the Products and/or Services.

 

15.Defective Products

 

15.1Notice of defect:  If you consider a Product is defected, you must:

 

(a)contact us immediately and advise us of the nature of the defect; and

 

(b)in accordance with our instructions, return the Product to us, at your cost, along with a full and accurate written descriptionof the issue that is affecting the Product.

 

15.2Remedy:  If a Product is in our reasonable opinion, defective, faulty or damaged or does not meet the description, specification or quantity specified in an Order, we will, at our cost:

 

(a)refund the reasonable cost of returning the Product to us; and

 

(b)either:

 

(i)repair the Product, within 10 days of receipt of the Product; or

 

(ii)replace the Product, with a comparable Product, within 10 days of receipt of the Product in question; or

 

(iii)refund in full monies paid in respect of the Product, within 10 days of receipt of the Product in question.

 

15.3Freight on replacement or repair:  We will deliver the repaired Product or repaired or replacement Product to you, at our cost within 10 days of receipt of the Product.

 

15.4Warranty:  A replacement or repaired Product assumes the remaining warranty of the original Product, provided under clause 14.1.

 

16.Liability

 

16.1Loss:  We shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by you arising directly or indirectly from our provision of Products and/or Services, any breach of any of our obligations arising under or in connection with these terms and conditions or from any cancellation of these terms and conditions or from any negligence on our, our employees, agents or contractors, nor shall we be liable for any loss, damage or injury caused to your employees, agents, contractors, customers or other persons (whether similar to the foregoing or not) arising as aforesaid.  Without limiting the rights of us in any way, you shall indemnify us against any claim by any of the foregoing persons in respect of any loss, damage or injury arising as aforesaid.  For the avoidance of doubt, and subject to clause 16.2 below, this clause 16.1 does not exclude liability of us for claims for loss, damage or injury arising directly as a consequence of our negligent acts and omissions.

 

16.2Limitation:  Notwithstanding anything else contained in this clause or contained elsewhere in these terms and conditions, the liability of us, whether in contract, tort or otherwise, in respect of all claims for loss, damage or injury arising from breach of any of our obligations arising under or in connection with these terms and conditions or otherwise shall not in aggregate exceed the Price actually received by us in respect of the Products and/or Services concerned.

 

17. Acknowledgments

 

17.1Acknowledgement:  You acknowledge that:

 

(a)all Products are sold “as is” but may be accompanied by their manufacturers’ standard warranties;

 

(b)any warranty provided by a manufacturer in respect of a Product may become void if you damage the Product or do not use the Product as intended or instructed by the manufacturer;

 

(c)we do not warrant or represent the suitability of a Product for your use;

 

(d)you are responsible for ensuring that any instructions, recommended uses, applications and installation methods are followed and any cautions and/or warnings observed; and

 

(e)where any recommendation or advice has been given by or on our behalf, we will not be responsible for the actual implementation of the recommendation or advice or the actions or performance of any party.

 

18. Customer’s obligations

 

18.1Obligations:  You must:

 

(a)provide us with reasonable cooperation in relation to the provision of the Products and/or Services; and

 

(b)promptly respond to any reasonable requests for information made by us in relation to the Products and/or Services.

 

19.Termination

 

19.1Termination for cause:  Either party may terminate these terms and conditions immediately by notice to the other party if:

 

(a)the other party commits a material breach of these terms and conditions and fails to remedy that breach within 10 Working Days after receipt of notice requiring the breach to be remedied; and

 

(b)the other partybecomes insolvent.

 

19.2Consequences of termination:  On and following termination of these terms and conditions for any reason:

 

(a)the termination or expiry shall be without prejudice to either party's rights and remedies in respect of any breach by either party of these terms and conditions, where the breach occurred before the termination or expiry of these terms and conditions;

 

(b)except as provided under these terms and conditions, each party (“Party A”) shall immediately cease using the other party’s (“Party B”) Intellectual Property Rights and shall promptly return or (to the extent required by Party B) destroy all Party B’s property and Confidential Information in Party A’s possession or control, and certify that it has done so; and

 

(c)you shall pay for the Products and/or Services provided in accordance with this Agreement up to the date of termination.

 

20. General

 

20.1Entire Agreement:  You agree that:

 

(a)these terms and conditions constitute the entire understanding and agreement of the parties relating to the matters dealt within it;

 

(b)we have not made any representations to you; and

 

(c)these terms and conditions supersede and extinguish all prior agreements, statements, representations and understandings whether verbal or written given by or made between the parties relating to matters dealt within these terms and conditions.

 

20.2No waiver:  No party will be deemed to have waived any right under these terms and conditions unless the waiver is in writing and signed by that party.  A failure to exercise or a delay in exercising any right under these terms and conditions will not operate as a waiver of that right.  Any such waiver will not constitute a waiver of any subsequent or continuing right or of any other provision in these terms and conditions.

 

20.3Amendments:  No amendment to these terms and conditions will be effective unless it is in writing, signed and confirmed in writing by us.  You acknowledge that we may from time to time amend these terms and conditions without prior notice to you.  Any amendments will be notified to you by being published on our website.  You agree that the amended terms and conditions will be effective upon publication on our website.  An amendment of any provision of these terms and conditions will not prejudice or affect any other provision of these terms and conditions.

 

20.4Severability:  Any unlawful or voidable provision in these terms and conditions will be read down so as to be valid and enforceable or, if it cannot be read down, will be severed from these terms and conditions without effecting the validity, legality or enforceability of the remaining provisions, provided the reading down or severing does not materially affect the purpose of or frustrate these terms and conditions.

 

20.5Survival:  Each provision in these terms and conditions survives to the extent unfulfilled, and remains enforceable and does not merge, on performance of another provision.

 

20.6Governing Law and jurisdiction:  These terms and conditions are governed by New Zealand law and the parties irrevocably submit to the exclusive jurisdiction of the New Zealand courts in any proceedings relating to them.