Terms of trade
In these Terms, the following words have the following meanings:
References to ‘us’, ‘our’, and ‘we’ are references to phew! Limited and includes its successors and assigns.
References to ‘you’ and ‘your’ are references to the person engaging the Services of phew! Limited and includes its successors and permitted assigns.
Additional Terms means any written terms, such as a Scope of Work, which we agree form part of the contract between us in addition to these Terms.
GST means Goods and Services Tax under the Goods and Services Tax Act 1985;
Price means the cost of providing the services to you as specified in clause 3 of these Terms.
Services means the cyber security or information security services that we have agreed to provide to you including consulting services and solutions-based services and include any associated products or goods required to carry out the services.
Terms means these terms as may be amended from time to time.
Upon Demand means after demand has been made by a notice signed by the person or his or her agent who can make demand, which has been served in the manner required by these Terms, on the person upon whom demand is to be made.
2. Application of these Terms
2.1 All orders for Services will be deemed to have been made by you and accepted by us upon these Terms and any Additional Terms. No order shall be binding on us unless and until we accept the order which shall occur on the later of the date on which we confirm acceptance in writing or the date on which we commence the Services. We are not required to accept any order for Services and may in our absolute discretion refuse to perform the Services.
2.2 We may agree Additional Terms with you prior to commencing the Services. If there is a conflict between the Additional Terms and these Terms, the Additional Terms will prevail.
2.3 Any term or condition contained in your order which is inconsistent with or qualifies or is contrary to these Terms or any Additional Terms shall be of no effect unless expressly accepted in writing by us.
3.1 The Price for the Services will be calculated on the basis of any of:
3.1.1 Quotations: Where we provide a quotation to you for Services, that quotation:
(a) will lapse without notice on the fourteenth day after it is given to you;
(b) may be withdrawn by us at any time before it is accepted by you;
(c) will only be binding upon us once we have confirmed it in writing and you have paid any deposit required by us in cleared funds;
(d) may be altered by us for any reason at any time before we confirm it;
(e) is an estimate only and is based the information you provide to us and our known commitments and resources at the date of the quotation;
(f) excludes any Services not expressly included in the quotation which will be charged separately.
3.1.2 Price List: Where Services are provided on the basis of our price list. That price list:
(a) will be provided to you on request;
(b) will be current at the date on which we accept your order;
(c) may be amended by us at any time without notice, provided that any change will only be applicable to subsequent orders.
3.1.3 Time and Materials: Where Services are provided on the basis of time and materials, we will notify you in writing of the basis on which the Price will be calculated.
3.2 We reserve the right to increase the Price at any time prior to providing the Services if our costs of supply increase due to circumstances outside of our control.
3.3 We will not be bound by clerical errors or omissions whether in computation or otherwise in any quotation, acknowledgment or invoice and the same shall be subject to correction.
3.4 Unless otherwise specified, our Price is in New Zealand Dollars and excludes GST, any other taxes, duties or third party costs. All such costs will be added to the Price and payable by you.
4.1 We will provide a valid GST invoice to you in respect of the Services. Unless otherwise advised by us in writing, you must pay all invoices issued by us on or before the 14th calendar day after the date of the invoice without set off, counter claim or deduction.
4.2 If you fail to pay the invoice by its due date, then without prejudice to any other remedies we may have under these Terms, any Additional Terms or at law, we may:
4.2.1 charge interest on all overdue amounts at the rate of 15% above our bank’s overdraft rate per month calculated on a daily basis from the date on which payment was due until payment is made; and
4.2.2 withhold or cancel Services and retain as liquidated damages any money which you have already paid without being liable for any losses of any kind that you may suffer.
4.3 You will pay Upon Demand any expenses, disbursements and legal costs that we incur in enforcing our rights under these Terms or any Additional Terms. We may charge interest at the rate specified in clause 4.2.1 on such expenses, disbursements and legal costs if they remain unpaid for more than 5 days from the date on which demand was made.
4.4 We may at any time require you to provide security for payment and may suspend performance of our obligations under these Terms or any Additional Terms until you have provided security which is satisfactory to us in all respects. If we incur any costs or expenses as a result of any suspension of Services, those costs and expenses shall be payable by you Upon Demand.
5.1 We will:
5.1.1 use all reasonable skill and care in providing the Services in a timely and efficient manner to you; and
5.1.2 ensure that our personnel have the necessary skills, experience, training and resources to successfully deliver the Services,
but we will not be liable to you for loss or damage you suffer as a result of any delay or failure to perform the Services.
5.2 We may subcontract with any other person, firm or company for the performance of any or all of the Services, however we will notify you and seek your agreement in writing before any Services will be subcontracted.
6. Your Warranties and Acknowledgements
6.1 You acknowledge and accept that cyber security and information security is ultimately your responsibility and engaging us to provide the Services does not relieve you of that responsibility. For the avoidance of doubt, we accept no responsibility in relation to the security of your data or information including in relation to unauthorised access, unauthorised modification, unauthorised disclosure, misuse or loss of that data or information or any interference with it.
6.2 You warrant that all information you provide to us will be true, correct and accurate.
6.3 You warrant that you have the authority to request that we carry out the Services and by requesting us to carry out the Services, you authorise us to do all acts and things that are in our opinion necessary or desirable to carry out and complete the Services.
6.4 You authorise us to collect, retain and use any information about you for the purpose of assessing your creditworthiness, or enforcing any rights under these Terms or any Additional Terms.
7.1 You may request a variation to the Services provided at any time. Any variation to the Works must be agreed in writing between you and us and will be subject to these Terms and any Additional Terms.
7.2 If we agree to the variation, we may in our sole discretion adjust the Price to the extent necessary to take into account the nature and extent of the variation.
8. Cancellation or suspension
8.1 We reserve the right to cancel or suspend in whole or in part the provision of Services to you if at any time:
8.1.1 You fail to comply with these Terms or any Additional Terms;
8.1.2 An event occurs or information becomes known to us which in our opinion might materially affect your creditworthiness, the value of the Services, or your ability or willingness to comply with your obligations under these Terms or any Additional Terms; or
8.1.3 You are subject to an event in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency, or receivership, or which generally precedes such an event.
8.2 Any cancellation or suspension under this clause shall not affect any claim we have for money due at the time of cancellation or suspension or for damages for any breach of these Terms or any Additional Terms.
9. Intellectual Property
9.1 All intellectual property rights which are owned by either party on the date we confirm any order will at all times remain owned by that party exclusively.
9.2 We will retain all intellectual property rights in all materials provided by us to you. We grant to you a limited, non-exclusive, non-transferable licence to use our intellectual property only to the extent required to enjoy the Services and subject to any conditions we impose from time to time.
9.3 We own and/or license the intellectual property rights in certain systems, know-how and other intellectual property which we may use in the provision of the Services to you. For the avoidance of doubt, nothing in these Terms or any Additional Terms confers on you any rights or interests in, or licence to use any third party’s intellectual property rights.
10. Liability and Indemnity
10.1 All warranties, descriptions, representations and conditions as to fitness, suitability or otherwise in relation to the Services carried out, whether express or implied by law, trade, custom or otherwise are expressly excluded to the fullest extent permitted by law.
10.2 None of our agents or representatives is authorised to make any representation, statement, warranty, condition or agreement. We are not in any way bound by any such unauthorised statement nor can any such statement be taken to form part of a contract with us collateral to these Terms.
10.3 Except to the extent prohibited by statute or law, we shall not be liable whether in tort or contract or otherwise for any loss or damage of any kind whatsoever suffered or incurred by another person, and whether such loss or damage arises directly or indirectly from the Services. Without limiting the generality of this clause, we shall not be liable for any direct, indirect or consequential loss or damage of any kind, including any financial loss.
10.4 Except to the extent prohibited by statute or law, no employee, agent or independent contractor of ours shall in any circumstances be liable to you for any loss or damage arising or resulting directly or indirectly or consequentially from any act, negligence or default on his or her part while acting in the course of or in connection with his or her employment, agency or engagement. Without prejudice to the generality of this clause, every exception, limitation, condition and liberty contained and every right, exemption from liability, defence and immunity applicable to us or to which we are entitled shall also be available and extend to protect every such employee, agent or independent contractor.
10.5 Regardless of the legal basis of any claim, our maximum liability to you under any circumstances is limited to the amount paid by you to us for the Services in the 12 months immediately preceding the claim.
10.6 You indemnify us against all and any costs, including legal costs on a solicitor/client basis, expenses, losses, damages or claims by any persons whatsoever arising in any way as a result of any incorrect information supplied by you to us or any failure by you to comply with these Terms or any Additional Terms.
10.7 You acknowledge that the Services are being supplied for business purposes and that the provisions of the Consumer Guarantees Act 1993 are excluded.
11. Claims by the Customer
11.1 If you have any claims or complaints in relation to any Services carried out by us, you must notify us of those claims or complaints in writing within 30 days of completion of the Services. If we do not receive a claim or complaint within this timeframe, you shall be deemed to have accepted the Services as they were carried out.
11.2 Your sole remedy for any claim or complaint in relation to the Services is one of the following options which we shall choose at our discretion:
11.2.1 A refund, or where the complaint relates to only part of the Services, a partial refund relating to that part of the Services; or
11.2.2 To re-supply of the Services without charge.
12. Force Majeure
12.1 You acknowledge that there may be circumstances beyond our control which require us to totally or partially suspend the provision of Services to you for a period of time. We shall not be under any liability in respect of such suspension and in particular shall be under no obligation to perform at any particular future date any Services not delivered during the period of suspension.
13.1 We may vary or replace these Terms at any time in our absolute discretion at any time without notice. Services provided subsequent to the variation or replacement shall be on the altered or replaced terms.
13.2 These Terms together with any Additional Terms constitute the entire agreement between us and supersede any prior arrangement or understanding whether written or oral relating to the provision of Services.
13.3 If we fail to enforce any breach, right or remedy under these Terms or any Additional Terms, we shall not be deemed to have waived any breach, right or remedy of any of the rights or obligations we have under these Terms or any Additional Terms.
13.4 Unless otherwise agreed in writing, you will not assign either the benefit or the burden of any contract with us. We may assign to any person all or any part or our right, title and interest under any contract with you including the right to receive payment.
13.5 These Terms and any Additional Terms shall be governed by and construed with New Zealand law and the parties submit to the nonexclusive jurisdiction of the New Zealand Courts. If any dispute arises, proceedings shall be held in Auckland.