Terms of Trade
1. Preamble
These terms and conditions shall apply to the provision of all Services by Swerve to the Customer and form the Terms of Trade.
For terms specifically relating to Swerve’s Cyber Security Awareness Training programme, please see Cyber Security Awareness Training Terms.
2. Definitions
2.1 In these Terms and any Quotation, the following words where prefixed by a capital letter have the following meanings:
a) "Date of Delivery” means the calendar day any Equipment purchased by the Customer is delivered to the Customer’s Site;
b) "Documentation” means operating manuals and other printed materials supplied to assist or supplement the understanding, use or application of the System (including any Hardware or Software);
c) “Equipment” means the computer equipment owned by the Customer which Swerve needs access to perform the Services;
d) “Fees” means the charges payable by the Customer to Swerve for the Services and/or supply of Equipment;
e) “Force Majeure” has the meaning given by clause 16;
f) “Hardware” means computer hardware including the physical and tangible parts or components of a computer, excluding any telephone systems and printers;
g) “Order” means a request by the Customer for Swerve to supply goods or Services;
h) “Quotation” means a quotation (written or verbal) provided by Swerve to the customer in response to an Order;
i) “Purchased Equipment” means Equipment supplied by Swerve to the Customer;
j) “Services” means the services to be provided by the Supplier;
k) “Software” means all programs, applications and other operating information installed by the Supplier and purchased by the Customer;
l) “System” means the Software and Hardware operated by the Customer;
m) “Terms of Trade” means this Document and the contents thereof.
2.2 Unless the context otherwise requires, words importing the singular include the plural and vice versa and words of one gender include all other genders.
3. Customer’s Obligations
3.1 The Customer shall:
a) allow Swerve access to the System to perform the Services;
b) provide adequate working space and facilities for Swerve, if necessary; and
c) co-operate with Swerve in the diagnosis of any defect or malfunction in the System.
3.2 The Customer shall allow Swerve the use of any equipment, computer systems, peripherals or other hardware necessary to enable it to provide the Services and shall be responsible for procuring, installing and maintaining all communications media not supplied by Swerve.
3.3 The Customer shall make freely available to Swerve all Documentation, original Software installation media, current data backups, equipment, and any other relevant Hardware or Software for the efficient maintenance of the System.
3.4 The Customer shall not allow any changes or modifications to the System to be made by any party other than those authorised by Swerve. If such changes or modifications are carried out without authorisation or appropriate notification, Swerve reserves the right to review these Terms and Conditions and make adjustments accordingly.
3.5 The Customer acknowledges and agrees that by requesting the Services, Swerve may download and use software, gather system data, access and take remote control of the Customer’s computer and access or modify the Customer’s computer settings.
4. Fees
4.1 The Customer agrees to pay the Fees in accordance with clause 5.
4.2 The Customer shall pay Swerve for any additional services provided by Swerve that are not specified in a Quotation (where supplied) in accordance with Swerve’s hourly rate in effect at the time of the performance or such other rate as may be agreed. Any such charge for additional services shall be invoiced separately from any Fees due under the Document.
4.3 All Fees which are quoted in a Quotation or payable under this Document are, unless otherwise specified, exclusive of GST and/or government levies and charges for which the Customer shall be liable.
4.4 Quotations shall only be valid for the time period stated in the Quotation.
5. Payment
5.1 Swerve will invoice the Customer on completion of the Services, or progress billing for completed portions of a project, or the last day of every month. Each invoice will be sent to the Customer’s current email address as supplied by the Customer.
5.2 The Customer agrees to pay all invoices without any set-off, withholding or deduction, in full within 21 days of the date of the invoice.
5.3 If the Customer fails to pay on time any amount owing to the Supplier under this document, Swerve shall be entitled to charge the Customer interest on any sum outstanding at the rate of 10% per annum, calculated daily.
5.4 The Customer agrees to indemnify Swerve from and against all of Swerve’s costs and expenses incurred in recovering any outstanding amount from the Customer, including legal costs on a solicitor/client basis and/or all debt collection costs.
6. Variations and Amendments
6.1 If the Customer wishes to vary any details of the Services in an Order or Quotation, the Customer must notify Swerve in writing as soon as reasonably possible. Swerve shall use all reasonable endeavours to make any required changes and any additional costs thereby incurred shall be separately invoiced to the Customer.
6.2 If, due to circumstances beyond Swerve;s control, Swerve has to make any change in the arrangements relating to the provision of the Services, it shall notify the Customer as soon as possible. Swerve shall endeavour to keep such changes to a minimum and shall seek to offer the Customer arrangements as close to the original arrangements as is reasonably possible in the circumstances.
7. Procurement of Equipment
7.1 Where requested, Swerve will help the Customer to choose and define their System infrastructure. Final assessment and selection of the Equipment, Hardware, and Software and other services are the Customer’s ultimate responsibility.
7.2 Swerve shall perform it's obligations in relation to the choice and definition of the Customer’s system infrastructure in good faith, and with reasonable skill and diligence at all times.
7.3 Quotations presented by Swerve are based on the costs and circumstances at the date of the quote. Swerve reserves the right to alter quoted prices to cover cost increases beyond its control where they arise after the Quotation date. The Customer will be advised of these changes in writing whereupon the Customer may reconsider the Quotation.
7.4 A minimum of 10% markup will be charged on all Hardware and Software purchases.
8. Purchased Equipment
8.1 Title: despite any period of credit, title to all Purchased Equipment will remain with Swerve until payment in full for that Purchased Equipment has been received by Swerve.
8.2 Disposing of Purchased Equipment: until all money contemplated in Clause 8.1 has been paid, the Customer will not have any right to sell, pledge, or dispose of the Purchased Equipment.
8.3 Entry into premises: Subject to reasonable notice, Swerve may without prejudice to any of its other rights) enter any premises where Swerve reasonably believes the Purchased Equipment may be (which the Customer irrevocably authorises Swerve to do) and repossess that Purchased Equipment without liability for any damage caused, if:
a) all money contemplated in Clause 8.1 is not paid in accordance with this Document;
b) the Customer commits any material breach of any agreement between Swerve and the Customer which is not remedied within 15 business days after notice is given to the Customer by Swerve;
c) Swerve receives notice of or reasonably believes that a third-party may attempt to levy execution against the Purchased Equipment.
8.4 Proceeds of Sale: if the Customer sells the Purchased Equipment before the full payment of the money contemplated in Clause 8.1 then the proceeds of the sale will be the property of Swerve. The Customer will ensure that those proceeds are at all times identifiable, and can, at Swerve’s request, be paid to Swerve or held separately in trust for Swerve.
9. Risk
891 Risk of any loss, damage and deterioration of or to any Hardware or Software supplied by Swerve shall be borne by the Customer from the Date of Delivery.
8.2 Risk of damage to the System arising from installation of any Hardware or Software on-site shall be borne by the Customer except where the damage is caused by Swerve’s negligence.
10. Warranty
10.1 Swerve warrants that it will repair or make good any defects in materials or workmanship arising within the warranty period specified by Swerve. Where no warranty period is specified, no warranty is given.
10.2 No warranty claim shall be accepted:
a) where any attempt to repair the defective Equipment or any installation work is made by any person not authorised by Swerve; or
b) If any defective Equipment has been modified without Swerve’s approval; or
c) if the defective Equipment has not been stored, maintained, installed, or operated in a proper way.
10.3 Where the manufacturer or the original supplier of any such equipment or component provides a warranty, then Swerve (to the extent it is able to) shall make such warranty available to the Customer.
10.4 Where any unit of Equipment referred to in this Document is identified as being under warranty from the original supplier other than Swerve, rights under the original supplier warranty shall be exhausted first.
11. Disclaimer
11.1 The Customer agrees not to hold Swerve liable for any loss or damage resulting from incorrect information supplied by the Customer.
11.2 At the Customer’s request, Swerve may assist the Customer in determining the operating requirements and specifications of the System required by the Customer. If such advice is provided by Swerve, the Customer agrees not to hold Swerve liable for any loss or damage caused by Swerve in giving such advice.
11.3 Without prejudice to each party’s general right to damages for breach of contract, each party shall indemnify the other party in respect of any loss, damage, or cost (excluding consequential loss or damage) suffered or incurred as a direct result of its:
a) Gross negligence;
b) Fraud or other wilful criminal act;
c) Breach of confidentiality obligations.
11.4 Swerve shall not be liable to the Customer or be deemed to be in breach of this Document by reason of any delay in performing, or any failure to perform any of Swerve’s obligations if the delay or failure was due to any cause beyond Swerve’s reasonable control.
11.5 Swerve shall not be liable, whether in contract, tort, breach of statutory duty or otherwise for any loss suffered by the Customer in the form of lost revenue or profit or failure to achieve any benefit expected to be derived from the Document, loss of use of any asset, loss of data recorded on any computer or other equipment, loss which is not the direct and immediate consequence of the breach, business interruption or management time, or any other loss which is otherwise indirect, special or consequential.
11.6 The Customer acknowledges and accepts that Swerve shall not be liable for:
a) any failure by Swerve to restore any back-up systems; and/or
b) any virus or other malware suffered by the Customer.
11.7 The total liability of Swerve, whether in contract, tort, breach of statutory duty or otherwise for any and all breaches and/or non-performance of its obligations or liability under this Document shall be limited to the total Fees paid by the Customer.
11.8 Each party shall take all reasonable steps to mitigate any loss or damage it may suffer under this Document.
12. Confidentiality
12.1 Swerve shall treat as confidential information which comes into its possession to or as a result of or in the performance of this Document, whether such information relates to business, sales, marketing or technical operations of the Customer or the Customer’s clientele.
12.2 Swerve shall not, without written permission of the Customer, disclose such confidential information to a third party, unless this information is subsequently in the public domain through activities other than Swerve.
12.3 The operation of this clause shall survive the termination of this Document other than information that enters the public domain.
12.4 The Customer will in no way allow the configuration files, additional utilities or software provided to be copied or distributed in any way whatsoever without written consent from Swerve.
12.5 Swerve has the right to copy and re-use Software and techniques developed by Swerve for the Customer.
13. Fee Dispute
13.1 Any fee dispute by the Customer must be raised within 10 working days of the date of the invoice, in writing, specifying the grounds of the dispute in reasonable detail and must state the amount the Customer considers to be due.
13.2 Where an amount is specified by the Customer, the Customer must pay the amount specified on the due date of the relevant invoice and must pay the balance into a trust account of a third-party solicitor. The Customer agrees to irrevocably instruct the third-party solicitor to hold the funds in trust and will release the funds upon document of both parties or by Court order. For clarity, the third-party solicitor shall be engaged by the Customer, not Swerve.
13.3 If the Customer fails to comply with clause 13.1, it shall be deemed to have accepted that the invoice is payable in full.
14. Other Disputes
14.1 What to do if the Customer has a complaint: if the Customer has a genuine complaint, the Customer is to phone or write to Swerve within 5 business days so that Swerve can attempt to resolve the complaint as soon as possible. Swerve will use its best endeavours to resolve all genuine complaints within 5 business days of receiving all the relevant details from the Customer.
14.2 Meet to Resolve Disputes: if Swerve cannot resolve a genuine complaint within 5 business days, or if the Customer has a genuine dispute with Swerve relating to this Agreement, both Swerve and Customer must be available to meet, either at the Customer’s premises or Swerve’s, to attempt to resolve the dispute by discussion.
14.3 Legal Proceedings: neither the Customer nor Swerve can issue any legal proceedings (except where an injunction or other urgent relief is required) in respect of any such dispute between the parties, unless all reasonable steps are first taken to comply with Clauses 14.1 and 14.2.
15. Termination
15.1 Without prejudice to any other rights Swerve may have under this Document or at law, Swerve may terminate the Document immediately in writing if:
a) the Customer is in breach of any of its obligations in the Document;
b) the Customer is unable to pay its debts as they fall due or cease or threaten to cease conducting its business in the normal manner;
c) enter into, or attempt to enter into any composition, assignment or other arrangement with, or for the benefit of its creditors;
d) becomes or threatens to resolve to become, or is in jeopardy of becoming insolvent;
e) the Customer is placed in liquidation, receivership or administration; or
f) being a natural person, dies.
15.2 If notice is given to the Customer to terminate this Document pursuant to clause 15.1, Swerve may, in addition to terminating the Document and without prejudice to any rights or remedies available to it:
a) recover from the Customer any sums owing to Swerve; and
b) recover from the Customer the amount of any direct loss or damage sustained as a result of termination.
16. Force Majeure
16.1 Neither party shall be liable for any delay or failure in performing their obligations where such delay or failure results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, internet service provided failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question (“Force Majeure”).
16.2 If a delay or failure to perform a party’s obligations due to Force Majeure exceeds 30 days, either party may terminate the Document by giving notice to the other party.
16.3 If this Document is terminated pursuant to Clause 16.2, Swerve shall refund moneys previously paid by the Customer pursuant to this Document for Services which have not been provided by Swerve to the Customer.
16.4 If this Document is terminated pursuant to Clause 16.2, the Customer shall pay monies owed to Swerve pursuant to this Document for Services which have been provided by Swerve to the Customer.
17. Intellectual Property
17.1 The Customer acknowledges that Swerve (or Swerve’s Supplier) is the sole owner of all Intellectual Property (including business know-how, ideas, methodologies, routines, systems and processes) relating to or arising, directly or indirectly, out of the Goods and Services that Swerve supplies to the Customer, or developed or contributed to by Swerve in relation to any information, fault, repair or documentation that Swerve supplies to the Customer, or as a result of Swerve performing Services or any other work for the Customer.
18. Assignment
18.1 The benefit of this Document shall not be dealt with in any way by Swerve (whether by assignment, sub licensing, or otherwise) without the Customer’s written consent.
19. Sub-Contractors
19.1 Swerve shall be allowed to sub-contract or otherwise arrange for another person to perform the Services. In this case, Swerve remains liable to the Customer for all obligations under this Document.
20. Waiver
20.1 No term of this Document shall be deemed to be waived except by notice in writing and signed by each party.
21. Notices
21.1 Notices under this Document may be delivered by hand, mail, or email to the addresses provided by the Customer.
21.2 Notice is deemed to be deemed given:
a) In the case of hand delivery, upon written acknowledgement of receipt by an officer, employee, agent or representative of the receiving party;
b) In the case of post, 7 working days after dispatch;
c) In the case of email, upon completion of transmission.
22. Governing Law
22.1 This Document is subject to the laws of New Zealand and the parties agree that the Courts of New Zealand will have exclusive jurisdiction in the event that a dispute arises.