Mon - Fr
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7:30AM - 5:00PM
1.1 These terms of trade (Terms) form the basis of the agreement between you, the customer (you, your) and Nemesys Limited (we, us, our) and apply to the provision of all services by us to you.
2.1 Definitions: For the purposes of these Terms the following definitions shall apply:
Business Hours means the hours of 8.30am to 5.30pm of Working Days unless otherwise mutually agreed.
Deliverable means the final version of any output or deliverable of the Services that we are to provide to you, as may be further described in a Statement of Work, but excludes any Products, Materials and Third-Party Software.
Hardware means, as the context requires, any physical computing device, component, or peripheral, whether individually or as part of an assembled computer system.
Intellectual Property means all or any of the following: trade marks and applications for registration of trade marks, trade name(s), patents and applications for patents, know-how, being technical and other information or trade secrets, copyright in any written material, plans, software object code or software source code, designs, whether or not registered or protected by copyright, and any other intellectual property.
Materials means any goods, materials, Hardware or miscellaneous goods or products that we supply to you in the course of providing the Services, but excludes Deliverables, Products and Third-Party Software.
Price means the price payable for the Services, including without limitation any Materials, Deliverables, Products or Third-Party Software provided we provide to you and calculated in accordance with clause 5, and is exclusive of and plus GST.
Product means any Software we own that we have standardised as a stand alone product offering which is available for license by customers, but excludes any Materials, Deliverables and Third Party Software.
Services means all services and advice we have provided or will provide to you and shall include without limitation general automation engineering consulting, support, project management, software development, testing and other similar engineering services, as further described in a Statement of Work, subject to any limitations, exclusions or restrictions set out in the Statement of Work or as specified by us from time to time.
Software means machine readable code, compiled to create a computer program (or part thereof), whether installed locally or otherwise available as a service.
Statement of Work means a written document, whether called a statement of work, work package definition, work request, purchase order, accepted quote or other similar name, that has been signed and/or acknowledged by you and us, that sets out (subject to any agreed change requests) the scope of Services that are to be provided by us.
Terms means these Terms, together with any Statements of Work, as both may be varied pursuant to clauses 3.5, 3.6 or 17.9 (as applicable).
Third-Party Software means any Software that is not owned by us, including without limitation open-source software.
Working Day has the meaning set out in the Companies Act 1993.
2.2 Interpretation: In these Terms, unless the context requires otherwise, or specifically stated, reference to:
(a) the plural includes reference to the singular, and vice versa;
(b) words importing one gender includes all genders;
(c) any law, legislation, or legislative provision includes any statutory modification, amendment, or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision whether before or after the date of these Terms;
(d) any reference to a clause is to a clause of these Terms;
(e) monetary amounts are exclusive of and plus GST (if any), and the payer shall pay by the date specified such GST on any amount payable, unless otherwise stated in these Terms; and
(f) 'including' (and its similar expressions) shall be interpreted as if followed by 'without limitation'.
2.3 Headings: Headings inserted in these Terms are for convenience of reference only and do not affect the interpretation of these Terms.
2.4 Rights: Unless the context requires otherwise, or specifically stated in these Terms, a right or power specified in these Terms may be exercised at any time.
2.5 Negative obligations: Any obligation not to do anything will be deemed to include an obligation not to suffer, permit or cause that thing to be done.
3.1 Proposal request: To purchase any Services pursuant to these Terms, you shall contact us to discuss your requirements with us. If we are able to assist you, then we shall prepare a draft Statement of Work for your consideration. Once agreed the parties shall sign the Statement of Work.
3.2 Statement of Work: We are not obliged to perform any Services until a Statement of Work has been signed both you and us. You agree that our acceptance of a Statement of Work (in whole or in part) is subject at all times to our sole discretion.
3.3 Cancellation by you: You cannot cancel a Statement of Work for convenience other than as set out in clause 11.2 without our prior written approval.
3.4 Cancellation by us: We will use reasonable endeavours to supply Services set out in a Statement of Work, but we do not guarantee supply, and may cancel a Statement of Work for convenience at any time (whether the Statement of Work has commenced or not) in accordance with clause 11.2.
3.5 Instructions and directions: You may provide instructions and directions to us in relation to the Services from time to time, and we shall use reasonable endeavours to comply with such instructions and directions. If we reasonably consider that such instructions or directions comprise a change request in respect of the Services or a Statement of Work, we shall notify you in writing within 20 Working Days after receipt of the instruction or direction, and prepare and provide a written change request in respect of the Statement of Work to you.
3.6 Agreed change requests: The parties may mutually agree to a change request in respect of a Statement of Work from time to time, and any such agreed change request in respect of a Statement of Work shall be recorded in writing and signed by both parties. A change request does not take effect until such change request has been recorded in writing and signed by both parties.
4.1 Statement of Work: We will use reasonable endeavours to perform the Services as set out in each Statement of Work.
4.2 Access: You shall provide us with reasonable access, without delay, to your IT systems, network, equipment, software, data, policies, procedures, information, personnel, and provide sufficient administrator rights, to enable the Services to be performed. Our access to your site shall be subject to your reasonable and lawful policies, provided that such policies have been provided to us in advance.
4.3 Equipment: Except as set out in the Statement of Work, you shall provide all equipment and facilities necessary for us to perform the Services.
4.4 Cooperation: You shall ensure your personnel are co-operative, and provide reasonable assistance to us, to enable the provision of the Services.
4.5 Warranty: You warrant:
(a) that you have, or will have at the date that the Services are scheduled, all necessary Third-Party Software licences and Hardware required to enable us to perform the Services, except for the Materials;
(b) that you will only use the Deliverables for a proper purpose, and for your internal business purposes; and
(c) that you will comply with all applicable laws in relation to these Terms.
4.6 Diagnostic Software: We may request your consent to use diagnostic software and other software tools from time to time, to assist us in the performance of the Services (Diagnostic Software). You will not unreasonably withhold or delay consent in respect of any request by us to install and use the Diagnostic Software, whether via direct or remote connection, on your IT system. Such Diagnostic Software remains our or our licensors' sole and exclusive property, and shall not form part of any software licence contained within, or associated with, these Terms. We shall own any output from the Diagnostic Software, and any Intellectual Property contained within such output, and you may only use such output upon our specific consent, and we may impose any use restrictions that we deem necessary.
4.7 Health and Safety: Should the Services be carried out at your or other third-party sites, sufficient work space will be provided to our personnel to enable the provision of the Services, and such site shall be safe and secure, and comply with all applicable occupational safety and health legislation and policies. We will comply with your reasonable health and safety policies when on your site, provided that such policies are at least as stringent as ours, and are provided to us a reasonable period prior to the commencement of any Services to be performed at your site.
4.8 No resale of Services: You shall not resell any Services, unless we agree in writing in advance.
4.9 Acceptance testing: Unless set out in the applicable Statement of Work, the Services and Deliverables are not subject to any acceptance testing by you.
4.10 Documentation: Unless set out in the applicable Statement of Work, we are not required to provide any documentation, materials, source code or training to you in respect of the Services and Deliverables.
4.11 Support and maintenance: Unless set out in the applicable Statement of Work, we are not required or liable to support or provide maintenance in respect of any Services, Deliverables, Materials, Products or Third-Party Software.
5.1 Quote: We may issue estimates or quotes to you from time to time. Any price set out in an estimate or quote:
(a) is valid for the period specified in the quote, or if no period is specified, 30 days from the date of the estimate or quote;
(b) the estimated or quoted price is exclusive of GST unless specifically stated to the contrary; and
(c) is based on our knowledge and understanding of your requirements at the time the quote is given and can be varied or withdrawn by us if any circumstances change, including without limitation supplier pricing, or you requiring any additional Services.
5.2 Service charges: Unless otherwise specified in a Statement of Work, the Price for Services is charged on a time and materials basis as follows:
(a) time spent by our personnel will be charged to you on an hourly basis, in accordance with our then current rate card, or as separately agreed by us in a Statement of Work.
(b) Materials and Third-Party Software supplied in the course of performing the Services, if any, are charged on a cost price basis, plus freight and insurance;
(c) Products are supplied on a list price basis; and
(d) expenses incurred by us in delivering the Services, including without limitation travel, accommodation, meals and other out of pocket costs and expenses, on a cost price basis, provided that you have provided your prior written consent to such expenses being incurred.
6.1 Invoice: We will issue an invoice to you for the Price at the end of each month in which we have provided the Services to you. You agree to pay the Price to us by the 20th of the month following the date of invoice.
6.2 Terms of Payment: All amounts payable pursuant to these Terms are:
(a) payable by electronic transaction, to our nominated bank account;
(b) in New Zealand dollars or as otherwise specified by us; and
(c) exclusive of, and plus, GST and all other taxes and duties which may be applicable.
6.3 Failure to pay: If you fail to pay any amount required to be paid pursuant to these Terms on or prior to the due date for payment, then we shall provide notice in writing to you identifying the failure to make such payment (Payment Notice). If you have not paid the amount within 14 days after the date of the Payment Notice, then without prejudice to our other rights and remedies under these Terms or at law, we may (in our sole discretion) take any one or more of the following actions:
(a) immediately suspend these Terms, or any part of the Services or a Statement of Work;
(b) cease the supply of Materials and Services, or continue to supply Materials and Services to you on a cash in advance basis;
(c) if you have a credit account, reduce your credit limit;
(d) remove, repossess or disable the Materials and/or Deliverables;
(e) charge interest on all amounts due and payable at a rate of the then Official Cash Rate plus 10% per annum calculated on a daily basis until payment is received in full by us; and/or
(f) list you with any debt collection agency, engage a debt collection agent or other third party to recover the outstanding amounts.
6.4 Recovery of costs: You shall reimburse us for any and all costs, charges or expenses (including legal costs as between solicitor and client and any debt collection agency fees) incurred by us or any third party in consequence of or in connection with your failure to pay any amount due pursuant to these Terms.
7.1 Any delivery timeframe stated by us (whether in respect of Services or Materials, and whether stated in a Statement of Work or not) is an estimate only, and we shall not be liable should delivery take place earlier or later than stated.
8.1 Services: Subject to any limitations, restrictions or exclusions set out in the applicable Statement of Work, we warrant that:
(a) we shall perform the Services:
(i) in a professional manner and in accordance with our standard operating practices and procedures;
(ii) in accordance with the requirements of the applicable Statement of Work;
(iii) in accordance with good industry practice; and
(iv) in accordance with applicable law; and
(b) the Services shall be performed by personnel that are sufficiently skilled, trained and experienced to perform the Services.
8.2 Deliverables: Subject to any limitations, restrictions or exclusions set out in the applicable Statement of Work, we warrant that all Deliverables shall comply with the requirements of the Statement of Work for a period of 90 days after the date the Deliverables are delivered to you, or where acceptance testing applies as set out in clause 4.9 the point in time when you accept the Deliverables pursuant to the process set out in the applicable Statement of Work.
8.3 Products: Subject to any limitations, restrictions or exclusions set out in the applicable Statement of Work, any Product provided supplied to you is subject to the warranties set out in the applicable Product end user licence agreement, documentation and any other terms and conditions supplied by us to you.
8.4 Third-Party Software: With respect to any Third-Party Software:
(a) we do not provide any warranty, but will use our reasonable endeavours to pass on any third-party warranty to you, if applicable;
(b) we will provide reasonable assistance where you wish to make a claim against a warranty that is passed onto you; and
(c) for the avoidance of doubt, we are not liable for any warranty provided by any third party.
8.5 Warranty Breach: Where you believe you have a valid claim against us in respect of a breach of warranty described in clauses 8.1 or 8.2, you shall notify us in writing, including full particulars of the alleged breach (Warranty Claim Notice).
8.6 Result of Breach: On our receipt of a Warranty Claim Notice, you shall provide full and unrestricted access to your IT systems for us to undertake testing, and we shall determine, in our sole discretion, whether the warranties in clauses 8.1 or 8.2 have been breached. In the event of breach, we shall either, as determined by us in our sole discretion, repair, replace, credit or refund that part of the Price actually paid by you in respect of the defective Services or Deliverables, and such remedy shall be your exclusive remedy in respect of such breach. If we determine that the warranty in clauses 8.1 or 8.2 have not been breached, we shall notify you in writing.
9.1 The parties agree that they are each in trade, and are entering into these Terms for a business purpose. As such, the parties agree as follows:
(a) the statutory guarantees contained in the Consumer Guarantees Act 1993, sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 and part 3 of the Contract and Commercial Law Act 2017 are excluded to the maximum extent permitted by applicable law; and
(b) except as expressly set out in these Terms:
(i) the Materials, Services and Deliverables are provided on an 'as is' basis, without warranty of any kind; and
(ii) all warranties, conditions guarantees and liabilities,
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