Swiift Internet Limited (“Swiift”) agrees to provide Goods & Services to the customer on the following terms and conditions. Every request for Goods & Services (whether or not made on an Order Form) upon acceptance by Swiift shall form a separate contract between the parties comprising these terms and conditions and any other details agreed in writing. In these terms and conditions, references to “us”, “our” and “we” are references to Swiift, and references to “you” and “your” are references to you.
“Confidential Information” means any information, know-how, data and products whether of a business, financial, marketing, product, technical or non-technical nature and whether existing in hard copy form, on computer disc or otherwise which is disclosed to you by Swiift or which you become aware of in the course of the provision of the Goods & Services.
“Customised Software” means software specifically developed for you by Swiift.
“Goods” means all computer hardware and other equipment specified in an Order Form or otherwise ordered by you, and any software supplied by Swiift including the Customised Software.
“Goods & Services” means Goods, Services and/or Customised Software.
“Order Form” means a form provided by Swiift or otherwise approved by Swiift and used by you to request Goods & Services.
“Services” means the services specified in the Order Form or otherwise agreed, including project management, quality assurance, network and system design, system audits, engineering services, internet services and domain name services.
2.1 By requesting Goods & Services to be provided by Swiift, you have acknowledged and agreed that these terms and conditions apply and that you are bound by these terms and conditions. Swiift may amend these terms and conditions from time to time and the amended terms and conditions will apply to all Goods & Services ordered by you following receipt of the amended terms and conditions.
2.2 If you order Goods & Services on behalf of a company or other entity you represent that you have the requisite authority to enter into an agreement on behalf of that entity.
3.1 Unless otherwise agreed in writing the term of any contract between the parties will continue until terminated following one of the parties providing the other with 30 days’ notice in writing of termination. For the avoidance of doubt, termination will not affect either party’s rights as accrued prior to the date of termination.
4.0 BUSINESS AND DOMESTIC USE
4.1 These terms and conditions apply to both the private and business use of the Goods & Services. If you are not acquiring these for the purpose of a business (as defined by the Consumer Guarantees Act 1993) then that Act applies and nothing in these terms and conditions limits your rights under it.
5.0 YOUR RESPONSIBILITIES TO SWIIFT
5.1 Whenever Swiift provides Work to you, you will ensure that:
(a) any information you have given Swiift is correct and complete;
(b) you update all information given to Swiift as required to ensure Swiift retains a correct and complete record;
(c) any directions given regarding the use of the same are followed;
(d) the same are used for lawful purposes; and
(e) any user of the same complies with these terms and conditions.
6.0 DELIVERY OF GOODS, SERVICES OR CUSTOMISED SOFTWARE
6.1 Swiift will make genuine reasonable commercial efforts to supply Goods & Services ordered by you. You acknowledge that any specified times are approximate and time is deemed not to be of the essence. You agree that Swiift will not be liable for failure or delay in delivery due to factors outside the reasonable control of Swiift.
6.2 Swiift may charge you for freight at its existing rates, provided it will consolidate Goods supplied wherever possible.
6.3 You must notify Swiift within three (3) working days of delivery of any error with regard to Goods delivered or any damage thereto. Failure to do so will be deemed acceptance of the Goods. Any Goods returned to Swiift must be in original condition and packaging, failing which you will be fully liable for them.
7.0 PAYMENT OBLIGATIONS
7.1 In return for the provision of the Goods & Services, you agree to pay the charges specified in the Order Form or as otherwise agreed. In particular you agree as follows:
(a) You agree to pay for the Goods & Services regardless of who uses them.
(b) Payment shall be made immediately on receipt of our invoice, by cash or direct debit unless agreed otherwise by Swiift. All payments are non-refundable even if your Services are suspended or cancelled.
(c) Any payment received later than 7 days after the date of our invoice will incur a late payment fee of $15.00. Any payment received later than 30 days after the due date will result in your account being placed on hold, an additional $15.00 reconnection fee will apply, and all outstanding amounts will immediately become due and payable upon demand.
(e) Should you dispute any of the charges appearing on your bill, please contact Swiift immediately. You will be required to pay all amounts invoiced while the parties investigate the dispute. If Swiift agrees there has been a mistake, Swiift will adjust your next invoice or issue a credit note.
(f) If you have not paid your account by the due date, you agree to pay penalty interest (at 5% above Swiift’s commercial overdraft rate) on overdue amounts from the due date until payment is received by Swiift.
(g) If your account is overdue for a period of 2 months, your account will be closed and your details referred to our debt collection agency or credit reference agency without notice to you. You agree that you will be liable for all debt collection agency costs, legal and other costs arising from collection of any amount owing by you.
7.2 PRICING STRUCTURE ALTERATIONS
Swiift reserves the right to change its prices at any time. Swiift will inform you of any changes in writing, following which the new pricing will apply to Goods & Services supplied to you.
8.0 PERSONAL PROPERTY SECURITIES ACT 1999 CONDITIONS
8.1 It is agreed and acknowledged that by these terms and conditions:
(a) A Purchase Money Security Interest (“PMSI”) pursuant to the Personal Property Securities Act 1999 (“PPSA”) is granted in priority to all other creditors by you in favour of Swiift in the Goods & Services and in all other additional or different goods from time to time supplied, and that such PMSI and the priority thereof shall extend into and over the items referred to in clauses 8.2 and 8.3 (d) (i) (ii) (iii);
(b) Swiift may at your cost register the PMSI interest under the PPSA by registering a financing statement and if at some later date additional or different property is supplied, to provide if necessary for registration a new collateral description by registering a financing change statement. This will not affect Swiift’s right to register subsequent financing statements, and to register subsequent financing change statements in respect of any other amendments;
(c) You agree to provide Swiift with such information as it may need to enable registration of the PMSI under the PPSA and you shall promptly execute any documents to ensure that the security interest under these terms and conditions is a first ranking perfected security interest over the Goods & Services and waive the right to receive a copy of the verification statement issued upon registration of the financing statement or of any financing change statement;
(d) That you have received valuable consideration from Swiift and agree that it is sufficient; and
(e) You shall not under any circumstances initiate any change to the registered financing statement.
8.2 In this document “Goods & Services” shall further refer to and mean:
(a) All goods provided by Swiift pursuant to an Order Form or other agreement;
(b) All future supplied goods and all additional or different property as may in the future from time to time be supplied;
(c) The Goods & Services as contained and described in invoices, packing slips, statements and other documents issued by Swiift;
(d) “Goods”, “inventory”, “other goods” and “personal property” as those terms are defined by the PPSA; and
(e) All present and after acquired personal property and collateral including proceeds of whatever nature or kind that may arise including without limitation that which is described in clause 8.3(d)(i),(ii) and (iii).
8.3 Goods supplied are at your risk once they are delivered to you or your agent, or to the address specified by you, or upon loading where you arrange your own transport, or when Swiift first makes an attempt to deliver if you fail to accept the Goods, or on the date of the request by you to delay delivery, but title in the Goods shall remain with Swiift until such time as the full price has been paid to Swiift for the Goods and for all and any other Goods & Services supplied by Swiift to you and until all default interest, other costs recoverable hereunder and all enforcement costs incurred by Swiift in the enforcement of any of these provisions (for which you hereby agree to pay) are paid in full. Until such payment is made you:
(a) Shall not under any circumstance mix the Goods supplied in any manner whatsoever with other goods not so supplied;
(b) Shall enable the Goods whether or not they are mixed with or constituent parts of other product manufactured or constructed to be readily identifiable as the property of Swiift;
(c) Shall be deemed to hold the Goods in a fiduciary capacity as bailee of Swiift and shall insure the Goods and maintain them safely and in good order and condition and to return or deliver the Goods immediately if called upon to do so;
(d) Shall not re-sell the Goods without the authorisation of Swiift and shall not dispose of them outside the ordinary course of business but in any event Swiift’s security interest and all the rights thereof shall still continue in the goods. Further and without prejudice to the above if the goods or any part thereof are re-sold or otherwise disposed of by you or any representative agent assignee or liquidator, or if they shall be destroyed or damaged prior to full payment, or if they shall become constituents of, attached or affixed to, co-mingled, mixed or manufactured with other goods, in addition to the rights given under the PPSA then the following shall also be the sole and absolute property of Swiift namely:
(i) All proceeds as defined by the PPSA, cash and monies, and pending payment to Swiift, you and any agent, representative, assignee or liquidator shall hold such proceeds, monies or other consideration in a separate account on trust for Swiift and deliver up same upon demand;
(ii) All accounts receivable, book debts and trade-ins in respect of the Goods ; and
(iii) The benefit of any other contract in pursuance to which the Goods or any property comprising the Goods or part thereof is or is to be disposed of and you, your agent, assignee or liquidator shall hold in trust for Swiift any benefit, contract or property comprising the Goods or any part thereof and all rights in respect of same.
8.4 If you fail to make payment or are in default with regard to any amount owing to Swiift (in all respects time being strictly of the essence) or commit an act of bankruptcy or are adjudicated bankrupt or are unable to pay your debts as they fall due or a liquidator or receiver is appointed or you are placed under statutory or official management or you compound or arrange with all or any number of your creditors then Swiift or its agent may enter the address where the Goods are situated including branches and franchisee premises (and you hereby give Swiift irrevocable authority and licence to do so) and remove the Goods without notice or judicial process and may severe them from anything to which they may be attached or affixed notwithstanding that the goods have become a fixture to land or other property, without liability for any damage caused or any consequential damage thereby arising and dispose of them for Swiift’s own benefit and take all other steps and remedies in respect of the items referred to in clauses 8.2 and 8.3(d)(i), (ii) and (iii) for Swiift’s own benefit and you hereby waive any right that may arise as a result of the removal and other steps and remedies taken. Such action shall be without prejudice to all other remedies and shall not release you from payment of the full price and any interest and all other costs incurred all of which you hereby agree to pay.
8.5 Where you are a consumer as that term is defined by the Consumer Guarantees Act 1993 you acknowledge that your right to undisturbed possession to the Goods is subject to full payment of the Goods and other costs and charges as stipulated in these terms and conditions and by your signature you acknowledge in writing such provision and your understanding of the affects and implications of it.
9.0 CUSTOMISED SOFTWARE
9.1 Swiift will provide you with a non-exclusive, non-transferable licence to use the Customised Software on the following basis:
(a) You will use the Customised Software in accordance with the documentation provided by Swiift and only for the number of users permitted and will inform Swiift should you require any additional licences;
(b) You will not copy any Customised Software and you will not utilise the backup copy unless the original Customised Software is corrupted or loss occurs;
(c) You are not entitled to resell or transfer any Customised Software;
(d) You will not reverse engineer, disassemble, decompile, modify, adapt, or otherwise attempt to discover the source code of any Customised Software;
(e) You are not entitled to assign, rent, lease or lend any Customised Software without the prior written consent of Swiift;
(f) You will return all copies of any Customised Software or destroy copies of any Customised Software should you be required to do so for either not complying with these terms and conditions or due to termination of contract;
(g) Any Customised Software labelled as an upgrade replaces and/or supplements and may disable the original software provided by Swiift that formed the basis of the upgrade. Any upgraded software is subject to these terms and conditions; and
(h) In conjunction with clause 10.1(a) you acknowledge that title in the Customised Software (including but not limited to any 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 Swiift.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 In relation to the provision of any Goods & Services by Swiift, you agree to the following:
(a) All and any right, title and interest and all intellectual property rights (including without limitation copyright) in the Goods & Services and any Goods & Services developed by Swiift in conjunction with you will be and remain the property of Swiift or its licensors or suppliers.
(b) You agree not to challenge or attack the validity of, nor challenge the rights of Swiift in relation to the intellectual property referred to in clause 10.1(a).
(c) You will not supply any property or introduce any information for use by Swiift in relation to the provision by Swiift of Goods & Services that would breach confidentiality or infringe the intellectual property rights of a third party.
11. CONFIDENTIAL INFORMATION
11.1 You will:
(a) Ensure that all Confidential Information is kept strictly confidential and not use the contents in any way other than for the purpose for which the information was disclosed;
(b) Not give Confidential Information, or allow Confidential Information to be received, by any person who is under a duty to communicate this information to another person; and
(c) Not use Confidential Information for any purpose other than that for which it was provided. If uncertain you agree to obtain permission from Swiift.
11.2 You agree to return us on demand, all Confidential Information in whatever form (including all copies) that is in your control.
11.3 You shall take all reasonable care to ensure that all materials in your possession that contain Confidential Information are kept secure.
12. USE OF PERSONAL INFORMATION
12.1 If you are an individual, you authorise Swiift and its agents to collect information about you to be held at Swiift’s head office. You agree that this information can be used for statistical analysis, research and Swiift’s marketing purposes. You also authorise Swiift and its agents to seek, supply and disclose information in relation to your credit-worthiness.
12.2 Swiift recognises that under the Privacy Act 1993 you can request access and require correction of your personal information. Any such request must be written and Swiift reserves the right to charge a fee for any reasonable costs incurred in responding to your requests (any costs will be disclosed for your acceptance before they are incurred).
13.1 Swiift warrants that the Goods & Services will be provided as defined in the Order Form or as otherwise agreed but Swiift will not be responsible for the compatibility of any Goods with other products unless Swiift has expressly agreed so in writing. Swiift will not be responsible for any failure of the Goods if the failure is a direct or indirect result of the inability of your software or hardware to operate correctly.
13.2 Swiift warrants that all Services will be provided in a careful and skilled manner.
13.3 Subject to clauses 13.1 and 13.2, Swiift’s sole warranty is to correct any errors in the Goods. Swiift’s liability under this warranty shall be limited to the Goods specified in the Order Form or otherwise agreed. You may be required to sign an installation certificate when Goods or Customised Software are installed by Swiift that indicates that installation is complete.
14. LIMITATION OF LIABILITY
14.1 In no event will Swiift be responsible for any damages whatsoever, including but not limited to any damages for the loss of business profits, loss of business information, business interruption or other pecuniary loss, even if Swiift has been advised of the possibility of such damages.
14.2 Notwithstanding clause 14.1, should Swiift be found liable for any breach, Swiift’s’ maximum liability under any contract shall be the amount paid by you for the Goods specified in the Order Form the subject of that contract in the immediately preceding 1 month.
You agree to defend, indemnify and/or hold Swiift harmless (at our option) from and against any and all claims, losses, liabilities and expenses (including solicitor-client fees and Court costs) related to or arising out of the Services provided by us to you or any breach by you of these terms and conditions, excluding only those claims which arise as a result of our negligence.
You agree to provide us with all assistance reasonably required to defend any claim brought against us as a result of your use of the Services, and to indemnify us from the cost of such defence to the same extent set out in clause 15.1 above.
16. DISPUTE RESOLUTION
Any dispute which arises between the parties concerning these terms and conditions which cannot be resolved by discussions between the parties within 7 days of one party notifying the other in writing that there is a “dispute” may be referred by either party to the arbitration of a single arbitrator agreed on between the parties, or in default of agreement as nominated by the then President of the Auckland District Law Society.
The arbitration will be conducted in accordance with the Arbitration Act 1996 (as amended).
17. GOVERNING LAW AND JURISDICTION
17.1 These terms and conditions are governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand. You agree that if any part of these terms and conditions is found to be void and unenforceable, it will not affect the validity of the balance of these terms and conditions.
18.1 Without prejudice to any other rights, Swiift reserves the right to:
(a) Terminate any Services provided to you immediately, if you have failed to comply with these terms and conditions (including any failure to pay for Goods & Services provided); and
(b) Repossess any Goods or Customised Software supplied if you fail to make any payment due to Swiift within 30 days of the due date.
19. FORCE MAJEURE
Swiift will not be liable for any failure or omission to provide any Goods & Services due to any cause reasonably outside the control of Swiift, which include (without limitation) strikes, riots, fire, inclement weather, acts of God, theft and vandalism.
20. RELATIONSHIP BETWEEN THE PARTIES
The relationship between the parties is that of independent contractors and not that of principal and agent. Neither party, nor any employee of that party, will be regarded as an employee or agent of the other party for any purposes whatsoever and neither has any right or authority to assume or create on behalf of the other any commitment, expense or liability whatsoever, except as specifically provided in these terms and conditions