In these terms and conditions:
a. “Agreement” means the contract between Safewise and the Customer for the provision and purchase of Services as set out in these terms and conditions together with any Supplementary Agreement;
b. “Customer” means the person whom is either, depending on the Services to be supplied by Safewise to that person, a user of the Website, the Customer for the purposes of a service level agreement, or a One-Off Customer.
c. “Claims” means any claim made by the Customer against Safewise whether in contract, tort (including negligence), breach of statutory duty or otherwise.
d. “Fees” means the amounts to be paid by the Customer to Safewise under the Agreement in consideration for the provision of Services by Safewise;
e. “Indirect or consequential loss or economic loss, cost or damage” includes, without limitation, loss or reduction of business or profits, whether reasonably foreseeable or not.
f. “One Off Customer” means a person to whom Safewise supplies Services on a one- off or non-continuous or on-going basis.
g. “Quote” means any quoted amount of Fees set out in any Supplementary Agreement;
h. “Services” means, the tasks carried out by Safewise at the request of the Customer (including but not limited to any Services set out in any Supplementary Agreement or any subsequent agreement between the Customer and Safewise);
i. “Supplementary Agreement” means any agreement, quotation, letter or email delivered or transmitted by Safewise to the Customer to which these terms are attached.
j. “Safewise Subscribe” means the subscription service made available to the Customer via the Website as offered by Safewise in exchange for the Safewise Subscribe Fees.
k. “Safewise Subscribe Fees” means the fees payable in respect of the Safewise Subscribe service as are set out on the Website or in any invoice for such fees from time to time.
l. “Website” means Safewise’s website provided in order for the Customer to access Safewise Subscribe
2. Safewise will only contract with the Customer on the terms and conditions of this Agreement.
3. Notwithstanding anything to the contrary in the Agreement, in the absence of any written agreement between Safewise and the Customer, a request by the Customer that Safewise commence the provision of Services shall be deemed acceptance by the Customer of the terms of the Agreement.
Use of Information
4. The Customer irrevocably authorises Safewise to collect, retain and use any information about the Customer for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under these terms and conditions, or marketing any goods and services provided by Safewise to any other party.
5. The Customer authorises Safewise to disclose any information obtained to any person for the purposes set out in clause 4.
6. Where the Customer is a natural person, the authorities under clauses 4 and 5 are consents for the purposes of the Privacy Act 1993.
7. The Customer must provide Safewise with true and correct information and must notify Safewise of any change in circumstances which may affect the accuracy of the information provided.
8. All prices (whether set out in this Agreement or any Supplementary Agreement or otherwise):
a. Are exclusive of GST, which, if payable, is payable by the Customer in addition to the stated prices on the same date as payment is made in accordance with clause 10;
b. Are based upon rates and costs as at the date of the Agreement or the date upon which Safewise provides a quotation or estimate to the Customer;
c. May be increased by the amount of any increase in the cost of providing the Services or any other factors (including any change in exchange rates) between the abovementioned date and the date of the relevant completion of the Services;
d. Are valid for 30 days from the date of quotation;
e. May be altered or withdrawn by Safewise at any time without notice.
9. Where Services are required in addition to those set out in the Quote or otherwise, the Customer agrees to pay for the additional costs of such Services.
10. Payment is due no later than the 20th of the month following the month of issue of a tax invoice. This is an essential term. Unless advised otherwise, invoices may be served on the Customer via email.
11. Penalty interest will be payable on late payments at 5% per month. In addition, the Customer will be liable for any costs incurred by Safewise in obtaining payment of any amount outstanding, including Safewise’s legal costs on a solicitor/client, and on an indemnity basis.
12. The Customer must pay the price indicated on the invoice or statement issued by Safewise.
13. If Safewise at any time deems the credit of the Customer to be unsatisfactory, it reserves the right to immediately cease to provide the Services and require the Customer to pay for any future Services in advance.
14. Subject to clause 13, the Customer will, upon demand, pay all amounts owed to Safewise even if they have not fallen due for payment.
15. All payments by the Customer must be made in full and without any deduction or right of set off or counterclaim. The Customer agrees, however, that all moneys which Safewise may owe the Customer on any account whatsoever may, at Safewise’s option, be set off against payments due by the Customer to Safewise.
16. Receipt of a cheque, bill of exchange, or other negotiable instrument by Safewise will not constitute payment and the Customer remains liable for the full contract price until such negotiable instrument is cleared and paid in full.
17. Any time stated for commencement, and/or completion of the services is an estimate only.
18. The Customer shall be provided with access to the Website but agrees that it will not:
a. Use the Website for any unlawful or undesirable purpose.
b. Use the Website for spamming purposes.
c. Attempt to cause any damage to the Website (whether by hacking or other action).
d. Post any offensive messages on the Website (including but not limited to any racist comments).
e. Place any links on the Website to any third party website unless such a link is authorised by Safewise.
Term and Termination
19. The term of the Agreement shall be 12 months from the earlier of:
a. The date on which the Customer signed a Supplementary Agreement;
b. The date on which Safewise commences the provision of Services; or
c. The date on which the Customer signed up to Safewise Subscribe;
20. At the conclusion of each 12-month term, the Agreement shall automatically renew for further successive terms of 12 months each until such time as the Agreement is cancelled in accordance with clauses 21 or 22.
21. The Customer may, upon giving 90 days’ notice, cancel the Agreement for any reason. The Customer agrees that notwithstanding that the Agreement may be cancelled in accordance with this clause, any fees that accrue up until the date that the Agreement comes to an end shall be due and payable in accordance with the Agreement.
22. Safewise, without any liability to the Customer, and without prejudice to any other right it has, in law or equity or elsewhere under the Agreement, has the right to suspend or cancel in whole or in part any contract for the supply of Services to the Customer if the Customer fails to pay any money owing after the due date or the if Customer becomes insolvent.
23. Any cancellation by either party or suspension by Safewise of the Agreement shall not affect Safewise’s claim for money due at the time of cancellation or suspension or for damages for any breach of the Agreement by the Customer.
Limitation of Liability
24. The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Safewise which cannot by law (or which can only to a limited extent by law) be excluded or modified. Without limiting this clause, in respect of any such implied warranties, conditions or obligations, Safewise’s liability will, where permitted by law, be excluded or if not able to be excluded, only apply to the minimum extent required by the relevant statute. Where the Customer acquires the Services for the purposes of a business, the Customer agrees that the warranties and guarantees contained in the Consumer Guarantees Act 1993 will not apply.
25. To the maximum extent permitted by law and:
a. Without limiting clause 25b), Safewise’s maximum liability for all Claims (including costs) by the Customer against Safewise arising directly or indirectly out of the supply of Services by Safewise to the Customer is limited to the total amount paid (excluding GST) by the Customer to Safewise under the Contract for that supply; and
b. Without limiting clause 25(a), Safewise is not liable (whether in contract, tort (including negligence), breach of statutory duty or otherwise) for any indirect or consequential or economic loss, cost or damage suffered or incurred by the Customer arising directly or indirectly from the supply of the Services or any act or omission of Safewise.
26. Safewise, shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond the control of Safewise.
27. The Customer and the Guarantor(s) agree that if they are in default under this Agreement, Safewise shall have an immediate right to register a security interest in all their present and after acquired personal property.
28. If requested in writing by Safewise, the Customer and/or the Guarantor(s) shall within 5 working days execute a general security agreement over property owned by them (“the Charge”). The Charge shall be prepared by Safewise’s lawyers and shall be on the standard Auckland District Law Society form.
29. The securities granted in this clause shall secure all obligations owed to Safewise from time to time, presently or in the future.
30. The Customer and/or the Guarantor(s) hereby irrevocably appoint Safewise to be their true and lawful attorney to sign or execute in the Customer’s name and in the Guarantor(s) name on their behalf any security or documents to give effect to the securities which Safewise shall request the Customer and/or the Guarantor(s) to execute pursuant to this clause.
Personal Property Securities Act 1999
31. If the Services are for the Customer’s business use, the Customer will have no rights under Part 9 (Enforcement) of the Personal Property Securities Act 1999 (“PPSA”). For example, but without limitation, the Customer will have no rights under sections 114(1)(a) and 116 (to receive notice of sale and statement of account), section 117 (to have any surplus distributed), section 119 (to recover any surplus), section 120(2) (to receive notice of any proposal of Safewise to retain collateral), sections 121(2) and 122 (to receive any proposal or object to any proposal to retain the goods), sections 125 to 131 (relating to removal of accessions), and sections 132 and 133 (to redeem the goods or reinstate the contract).
32. The Customer waives its right under the PPSA to receive a copy of any verification statement or financing change statement (as those terms are defined in the PPSA).
Patents, Copyright, and Technical Information
33. Copyright in all drawings, specifications and other technical information provided by Safewise in connection with this Agreement is vested in Safewise.
34. Any technical information, knowledge, or methods, at any time transmitted either orally or in writing by Safewise will remain the property of Safewise and will be considered confidential and will not be used for any purpose without prior written consent of Safewise.
35. The Customer will return any trade information, samples, literature, promotional material or tooling supplied by Safewise if requested to do so by Safewise.
36. In the case of any conflict between a written correspondence between the Customer and Safewise, including any Supplementary Agreement these terms and conditions shall prevail.
37. To be effective, any waiver of any or all of these terms and conditions by Safewise must be in writing.
38. The Contract between Safewise and the Customer is governed by the laws of New Zealand.
39. If any provision of this Agreement shall be invalid, void or illegal or unenforceable, the validity, legality and enforce-ability of the remaining provisions shall not be affected, prejudiced or impaired.
40. The Customer shall not assign all or any of its rights or obligations under this Agreement without the written consent of Safewise.
41. The Customer warrants that it has disclosed to Safewise all information requested by Safewise or which might reasonably need to be known by Safewise in order to provide the Services. Notwithstanding clause 25, Safewise shall have no liability for any losses suffered by the Customer resulting from their breach of the warranty contained at this clause 41.