General Terms and Conditions of Supply

1. DEFINITIONS

“PSL” means PowerShield Limited.

“Conditions” means these General Terms and Conditions of Supply, as amended by PSL from time to time.

“Sales Order Confirmation” means PSL’s written acceptance of an Order, and “Confirmed” has the same meaning.

“Customer” means a Person who Orders Products or Services from PSL.

“Purchase Order” means an order for the supply of Products and/or Services placed by the Customer.

“Person” includes a corporation.

“Products” means any products requested by a Customer in an Order which has been accepted by PSL.

“Quotation” means a quotation given by PSL in writing to a Customer specifying the prices at which particular products will be supplied and estimated delivery dates and may include price lists.

“Services” means any services provided, or to be provided, by PSL pursuant to an Order which has been accepted by PSL, including software-as-a-service.

“Warranty” means the warranty provided by PSL to its customers, as amended by PSL from time to time.

2. CONDITIONS TO PREVAIL

(a) Specific Products or Services may be subject to additional or supplementary terms and conditions, including end user licence agreements, software as a service terms, or other product-specific terms (“Additional Terms”). Where Additional Terms apply, they will be provided to the Customer prior to or at the time of the relevant Order and will form part of the contract between PSL and the Customer for those specific Products or Services. In the event of any conflict or inconsistency between these Conditions, any Additional Terms and a Confirmed Order, the order of precedence will be:

(i) the Additional Terms (but only in relation to the specific Products or Services to which they apply);
(ii) the terms of any Confirmed Order; and
(iii) these Conditions.

(b) Except where Additional Terms apply in accordance with clause 2(a), these Conditions constitute the entire agreement between PSL and the Customer and the sole terms and conditions upon which PSL will supply Products or Services to the Customer. These Conditions take precedence over any terms and conditions that may be submitted by the Customer as part of an Order, purchase order, acknowledgement or in any other document or elsewhere, whether submitted before or after the date of these Conditions. In the event of any conflict between the terms of a Confirmed Order and these Conditions, the terms in the Sales Order Confirmation will prevail.

3. VARIATION OF CONDITIONS

To vary any of these Conditions (including any addition or deletion) the variation must be in writing signed by the Customer and an authorized representative of PSL in order to bind PSL. PSL’s agents or representatives have no authority to make any representations, statements, warranties, conditions or agreements that conflict with these Conditions. Any such representations, statements, warranties, conditions or agreements shall not bind PSL nor form part of the contract between PSL and the Customer.

4. QUOTATIONS

(a) A Quotation will expire at 5.00pm on the validity date specified in that Quotation and shall not have any force or effect upon expiration.

(b) A Quotation shall bind PSL as to the prices specified in that Quotation while that Quotation remains valid.

(c) Any delivery dates specified in a Quotation shall be estimates only and time shall not be of the essence. PSL shall not be liable for any delays in delivery howsoever caused.

(d) All prices in a Quotation or Order exclude any applicable taxes and duties and are in NZD, unless stated otherwise.

5. ORDERS

(a) Orders must be placed in writing.

(b) These Conditions apply to all Orders and shall continue to apply until a Product has been delivered or a Service is complete (as relevant), other than in respect of any provisions intended to continue, including those relating to warranties, guarantees and liabilities.

(c) An Order may be cancelled by a Customer prior to Confirmation. If an Order is cancelled after Confirmation, the Customer will be charged a restocking fee of 25% of the price of the Products, together with shipping costs and any other costs incurred by PSL in preparing the Order (if any). These amounts will be paid by the Customer within 14 days of cancellation or deducted from any payment made by the Customer. Where payment has been made by the Customer for the Products or Services, PSL will refund the Customer the balance remaining after the restocking fee and shipping and other charges have been deducted.

(d) An Order may be cancelled by PSL at any time prior to commencing the Service or delivering the Product. In the event of such cancellation, PSL's sole liability shall be to refund any payment made by the Customer within 30 days, and the Customer shall have no other remedy or claim against PSL for such cancellation.

6. ACCEPTANCE OF ORDER

All Orders are subject to Confirmation within 7 days of receipt by PSL of the Order. If an Order is not Confirmed within that period by PSL it will be deemed to have been rejected. No Order shall bind PSL unless and until it is Confirmed by PSL in writing and subject to these Conditions.

7. PRICE

(a) Where an Order is placed for particular Products specified in a Quotation prior to the expiry of that Quotation, unless otherwise expressly agreed in writing, the price of those Products shall be the price stated in the Quotation.

(b) Where an Order is placed for Products which are not the subject of a valid Quotation, or after the relevant Quotation has expired, the price of those Products shall be the then current price charged by PSL as at the date of that Order.

(c) The price of the Products stated in a Quotation or Order excludes transportation and delivery costs, packaging, insurance, import/export fees, customs duties and all applicable taxes (including but not limited to GST, VAT, sales tax, or similar consumption taxes) which shall be payable by the Customer in addition to the Products.

8. DELIVERY

(a) Unless agreed otherwise in an Order PSL will deliver the Products DAP (Delivered at Place) Incoterms 2020, meaning:

(i) PSL is responsible for export clearance and transportation to the specified destination on the Order, ready for unloading;
(ii) the Customer is responsible for import customs, duties, and unloading the Products.

(b) The mode of delivery shall be at PSL’s discretion unless a mode of delivery has been agreed in writing.

(d) Any delivery date for a Product or date for the completion of a Service specified in a Confirmation is an estimate only. PSL shall not be liable for any damages or loss arising from delay in delivery, however caused, and the Customer will not be entitled to cancel an Order or these Conditions only because the delivery date or Service completion date is not met.

9. PAYMENT

(a) Unless PSL has agreed to extend credit to the Customer, the following payment terms shall apply:

(i) Payment shall be in full before delivery in accordance with clause 8, or

(ii) by the Customer arranging for its bank to issue an irrevocable letter of credit providing for payment on sight of shipping documents. PSL may require confirmation of such letter of credit by its bank. The Customer will pay all bank charges.

(b) If PSL has extended credit to the Customer payment of the price for all Orders must be made within 30 Days from date of invoice.

(c) PSL reserves the right to review the credit facilities extended to the Customer at any time and may vary the agreed terms by notice in writing at its absolute discretion.

(d) PSL shall provide the Customer with a Tax Invoice for the Products and/or Services provided which shall be paid on or before the due date without set-off or deduction (except for withholding taxes required by law, provided that the Customer shall pay such additional amounts as may be necessary to ensure that the net amount received by PSL equals the full amount that would have been received had no such withholding been required).

10. PROPERTY AND RISK

(a) Risk in the Products will pass to the Customer immediately upon delivery by PSL in accordance with clause 8.

(b) Ownership and title in Products shall not pass until the Customer has paid in full all amounts owing for the Products.

(i) the Customer shall hold the Products as fiduciary bailee for PSL and store the Products separately and in a manner that identifies them as PSL's property;

(ii) the Customer shall, at its expense, take all necessary precautions to keep the Products safe and free from damage by fire, water, accident, vermin or reckless or malicious damage;

(iii) Customer agrees to insure the Products for their full replacement value;

(iv) PSL may register a financing statement on the New Zealand Personal Property Securities Register or any equivalent register in the jurisdiction where the Products or the Customer are located to perfect its security interest in the Products, and the Customer agrees to cooperate with such registration;

(v) if the Customer is authorized to resell the Products in the ordinary course of its business, or any other products in which the Products have been incorporated, the Customer shall hold so much of the proceeds of such sale as equals the unpaid price payable to PSL in a separate account on trust for PSL.

(d) If the Customer fails to make full payment for any Products by the due date and PSL has given 7 days written notice to the Customer of such failure, and the Customer has failed to pay within this time, PSL is entitled to exercise all rights of a secured party under applicable personal property securities legislation. PSL shall be entitled to enter any premises of the Customer during normal business hours with reasonable prior written notice to inspect and, if the Customer remains in default, remove the Products, provided that such entry and removal complies with all applicable laws.

(e) If, for any reason whatsoever (including for repair by PSL), products owned by the Customer are in the custody of PSL, the Customer must ensure such products are insured for full replacement cover for any damage or loss to such products whilst in the custody of PSL. PSL shall not be liable for any loss, damage, or destruction of Customer products while in PSL's custody except to the extent caused by PSL's negligence or willful misconduct.

11. PROVISION OF SERVICES AT THE CUSTOMER’S PREMISES

The Customer shall, at its cost, provide all equipment and utility services (such as but not limited to power, water, lighting and telephone services) necessary for PSL to carry out those Services.

12. ACCEPTANCE AND INSPECTION

The quantities of Products listed on PSL’s delivery sheet shall be prima facie evidence of the quantities delivered, subject to the Customer's right to dispute. The Customer must advise PSL in writing of any shortfall within 14 days of delivery of the Products.

If the Customer believes the Products and Services have not been supplied in accordance with these Conditions, it shall advise PSL in writing within 14 days of receipt of the Products or Services, providing reasonable details of the deficiency. Otherwise, the Products or Services shall be deemed as accepted by the Customer.

13. DESCRIPTIONS AND SPECIFICATIONS

If PSL supplies any Products or Services to any specifications or other requirements of a Customer, the Customer shall indemnify PSL from and against all reasonable claims, judgments, costs and expenses (including reasonable legal costs and expenses on a solicitor-client basis) and any other liability which PSL may incur in relation to PSL’s compliance with any such specifications or other requirements of that Customer to the extent such liability arises directly from the Customer's specifications (and not from PSL's negligence or breach), including but not limited to:

(i) any infringement of the industrial or intellectual property rights of any third party; and

(ii) any defect in or unsuitability of such Products or the Customer’s Products.

14. WARRANTIES, INDEMNITY AND LIABILITY

(a) In relation to any Services, PSL warrants that it will:

(i) use reasonable due diligence, care and skill;

(ii) use appropriately qualified and experienced people;

(iii) comply with all applicable laws, the Order and any specifications in the Order; and

(iv) not violate any other person’s intellectual property rights.

(b) In relation to the supply of Products, PSL gives the Warranty. Except as expressly provided in clause 14(a) or in the Warranty, and subject to clause 13, all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied, statutory or otherwise relating in any way to any Products or Services supplied by PSL are excluded to the maximum extent permitted by law.

(c) PSL and the Customer agree that the Products or Services are purchased for commercial use and not for personal, domestic or household purposes. To the extent permitted by applicable law, the parties exclude the application of any consumer protection legislation.

(d) PSL’s liability for any breach of Warranty shall be limited, at PSL’s option:

(i) if the breach relates to a Product to:

A. the replacement of that Product or the supply of an equivalent product;

B. the repair of the Product;

C. the payment of the cost of replacing the Product with an equivalent product; or

D. the payment of the cost of having the Product repaired; and

(ii) if the breach relates to any Service to:

A. the supplying of the Services again; or

B. the payment of the cost of having those Services supplied again.

(e) Neither party will be liable for any failure to achieve its obligations under these Conditions resulting from any cause beyond its reasonable control, including, without limitation: lockouts; strikes; fire; riots; tempest; accidents to machinery; war; non-availability of materials; or default, non-supply or late supply by any supplier or subcontractor to PSL. If such failure continues for 60 days or more, either party may terminate these Conditions and any affected Order without liability.

(f) The liability of either party under these Conditions, where not otherwise excluded, shall, to the maximum extent permitted by applicable law, not be greater than the amount of fees paid or payable in relation to the Order which gave rise to the liability.

(g) Neither party will be liable for any consequential, indirect or pecuniary loss or damage under these Conditions including loss of profits, loss of revenue, loss of business opportunity, or loss of data.

(h) PSL will effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of all risks which PSL may incur arising out of its supply of the Products and/or Services, including where applicable, professional indemnity insurance, workers compensation and insurance against public liability and property damage.

(i) If any Products have intellectual property rights owned by PSL incorporated, installed or forming an integral part of them (“Embedded IP”), the Customer acknowledges and agrees:

(i) its use of Embedded IP is subject to its acceptance of PSL’s end user license agreement (“EULA”);

(ii) the Customer will procure any customer that it on-sells the Products to accepts PSL’s EULA at the time the Products are installed, and if the Customer accepts the EULA on behalf of its customer, it is responsible for that customer’s compliance with the EULA and will be liable if PSL suffers any loss or costs due to that customer’s failure to comply with the EULA;

(iii) the Embedded IP will be licensed by PSL to the Customer or its customer on the terms of the EULA; and

(iv) PSL retains all intellectual property rights in Embedded IP, and the Customer is not given any rights or interests in the Embedded IP other than under the EULA.

15. DEFAULT

(a) In the event that the Customer fails to make any payment when due, PSL shall notify the Customer of this late payment. If the Customer still does not make payment within 7 days, then, without prejudice to the application of any other provision of these Conditions or to any other remedy available to PSL:

(i) interest shall accrue on the amount of the overdue payment at a rate equal to 5% per annum above PSL’s bank’s commercial overdraft interest rate calculated from the date payment was due, and all payments which are not yet due shall immediately become due and payable by the Customer; and

(ii) any debt collection expenses and legal costs incurred by PSL in attempting to recover, or recovery of, such overdue amount shall become payable by the Customer on a full indemnity basis.

(b) If any of the following events apply to a Customer, PSL may, in its sole discretion suspend delivery of Products or performance of Services, cancel all outstanding Orders placed by the Customer, cancel these Conditions and retain any payments already made for Services performed or Products delivered, in addition to any other rights or remedies available to PSL:

(i) the Customer is in default of payment due for more than 7 days following notification in accordance with clause 15(a);

(ii) the Customer has materially breached any other obligation under these Conditions and has failed to remedy such breach within 10 days of receiving written notice specifying the breach;

(iii) the Customer is placed into liquidation or receivership (or a similar state);

(iv) a creditor (or similar) enters into possession or takes control of all or any of the Customer’s assets or undertaking; or

(v) the Customer is or becomes insolvent or ceases or threatens to cease to carry on its business.

(c) If an Order for Services is cancelled for any reason, the Customer must pay all fees incurred up to the date of termination (or a reasonable portion of the fee for any part of the Services completed but not yet invoiced before the date of termination).

(d) Cancellation of these Conditions or an Order will not affect any accrued right or liabilities of either party, and does not affect any provision of these Conditions that is expressly or by implication intended to continue in force after cancellation, such as confidentiality and intellectual property obligations, warranties, liability and insurance.

16. CONFIDENTIALITY AND PRIVACY

(a) PSL and the Customer will keep strictly confidential all information relating to the Products or Services, these Conditions and any other information they obtain from each other of a confidential or commercially sensitive nature that is not publicly available (other than because of a failure to comply with these Conditions), in whatever form (“Confidential Information”). PSL and the Customer must not disclose Confidential Information to anyone other than their personnel, subcontractors, or professional advisors on a “need to know” basis, and only where they have confidentiality agreements in place with such persons on substantially similar terms as these Conditions. PSL and the Customer shall only use Confidential Information to perform an Order or as required by law.

(b) PSL and the Customer shall return or destroy all Confidential Information of the other party in their possession on cancellation of these Conditions, unless required to be retained for legal, regulatory, or record-keeping purposes.

(c) Any personal information or personal data collected by PSL will be collected, used, processed and disclosed in accordance with its privacy policy and all applicable privacy and data protection laws.

17. GENERAL LEGAL TERMS

(a) These Conditions and all Orders shall be governed by New Zealand law without regard to the principles of conflicts of law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.

(b) The waiver of any term or condition of the Order by either party shall not be construed as the waiver of subsequent compliance therewith or with any other term or condition of the Order.

(c) If any provision of these Conditions shall be deemed invalid or unenforceable in any respect, the Conditions shall be construed as though such unenforceable provision does not appear in the Conditions and otherwise shall be fully enforceable.

(d) The relationship between the parties is that of supplier and customer and nothing in these Conditions is intended to establish a joint venture, agency or partnership between the parties.

(e) The Customer may not assign, transfer or novate an Order without PSL’s prior written consent.

(f) PSL may subcontract any part of the Order without the Customer’s consent but will remain responsible for all Products and Services supplied by all subcontractors.

(g) PSL may amend these Conditions at any time. The updated terms and conditions will apply to any subsequent Order for Products or Services.

(h) All notices will be emailed or delivered in person to the addresses stated in the Purchase Order. If a party sends a notice by email, it will be deemed to have been received on the working day it was sent or the next working day if sent outside normal business hours (in the location of the recipient), provided no error message was received by the information systems used by the sender to send the email.