1. DEFINITIONS
1.1 "The Bellwether Group" shall mean all companies under the Bellwether Group (Marcomms Limited, MC Lease Limited, Bellwether AI Limited and Bellwether AI Pty Limited) or any agents or employees of The Bellwether Group.
1.2 "Contract" shall mean the contract formed between The Bellwether Group and the customer who signed the New Account Form attached to these terms of trade.
1.3 "Customer" shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from The Bellwether Group.
1.4 "Goods" shall mean:
1.4.1 All Goods supplied by The Bellwether Group to the Customer; and
1.4.2 All inventory of the Customer that is supplied by The Bellwether Group; and
1.4.3 All Goods supplied by The Bellwether Group and further identified in any invoice issued by The Bellwether Group to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.4.4 All Goods that are marked as having been supplied by The Bellwether Group or that are stored by the Customer in a manner that enables them to be identified as having been supplied by The Bellwether Group; and
1.4.5 All of the Customer's present and after-acquired Goods that The Bellwether Group have performed work on or to, or in which goods or materials supplied or financed by The Bellwether Group have been attached or incorporated; and
1.4.6 The above descriptions may overlap, but each is independent of and does not limit the others.
1.5 "Goods and Services" shall mean all goods, products, services and advice provided by The Bellwether Group to the Customer, including without limitation all contracting and maintenance services, the supply of components, and all charges for labour, hire, insurance, or any other fee associated with the supply of Goods and Services.
1.6 "New Customer Account Form" means the form titled "New Customer Account Form" attached to these terms of trade.
1.7 "Price" shall mean the cost of the Goods and Services as agreed between The Bellwether Group and the Customer, including all disbursements (eg charges The Bellwether Group pays to others on the Customer's behalf), subject to clause 4 of the Contract.
1.8 "Hardware" or "Equipment" means any sensor, dashboard, device or other physical equipment supplied by The Bellwether Group to the Customer under a lease, licence or as-a-service arrangement. Hardware and Equipment form part of Goods, but are subject to the specific ownership and intellectual property protections in clauses 8 and 18.2.
1.9 "Taxes" means GST, VAT, sales tax, or any other similar consumption, turnover or value-added tax applicable in the Customer's jurisdiction.
2. ACCEPTANCE
2.1 Any instructions received by The Bellwether Group from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of these terms of trade.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises The Bellwether Group to collect, retain and use any information about the Customer, for the purpose of assessing the Customer's credit worthiness, enforcing any rights under this Contract, or marketing any Goods and Services provided by The Bellwether Group to any other party.
3.2 The Customer authorises The Bellwether Group to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Customer is a natural person, the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 2020.
3.4 The Customer acknowledges and agrees that The Bellwether Group will use data obtained in providing services to the Customer for statistical purposes, including blogs, articles and reports. At no stage will The Bellwether Group disclose the Customer's identity or publish data in a way that enables third parties to ascertain the Customer's identity from assessment of the data.
4. PRICE
4.1 Where no Price is stated in writing or agreed to orally, the Goods and Services shall be deemed to be sold at the current amount as such Goods and Services are sold by The Bellwether Group at the time of the Contract.
4.2 The Price may be increased by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the control of The Bellwether Group between the date of the Contract and delivery of the Goods and Services.
5. PAYMENT
5.1 Payment for Goods and Services shall be made in full on or before the due date stated in the invoice ("the due date"), being the 20th day of the month following the invoice date for Customers.
5.2 Interest may be charged on any amount showing +60 days after the due date, at the rate of 10.50% per month or part month.
5.3 Any expenses, disbursements and legal costs (on a solicitor to client basis) incurred by The Bellwether Group in the enforcement of any rights under this Contract shall be paid by the Customer, including any solicitor's fees or debt collection agency fees.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 The Bellwether Group reserves the right to suspend all Dashboard and Data services if an account is in arrears.
5.6 All invoices must include a description of the Goods and/or Services supplied, be addressed to the correct legal entity, and comply with the Tax invoicing requirements applicable in the Customer's jurisdiction.
6. QUOTATION
6.1 Where a quotation is given by The Bellwether Group for Goods and Services:
6.1.1 Unless otherwise agreed, the quotation shall be valid for 14 days from the date of issue; and
6.1.2 The quotation shall be exclusive of Taxes unless specifically stated to the contrary; and
6.1.3 The Bellwether Group reserves the right to alter the quotation because of circumstances beyond its control.
6.2 Where Goods and Services are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Goods and Services.
7. RISK
7.1 Risk in any Goods and Services supplied by The Bellwether Group shall pass when the Goods and Services are delivered to the Customer, and it shall be the Customer's obligation to insure the Goods and Services from that time.
8. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
8.1 Title in any hardware goods supplied by The Bellwether Group passes to the Customer only when the Customer has made payment in full for all hardware goods provided, and of all other sums due to The Bellwether Group by the Customer on any account whatsoever. Until all sums due have been paid in full, The Bellwether Group has a security interest in all Goods.
8.2 If the Goods are attached, fixed, or incorporated into any property of the Customer by way of any manufacturing or assembly process, title in the Goods shall remain with The Bellwether Group until the Customer has made payment for all Goods. Where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to those new Goods shall be deemed to be assigned to The Bellwether Group as security for the full satisfaction by the Customer of the full amount owing.
8.3 The Customer gives irrevocable authority to The Bellwether Group to enter any premises occupied by the Customer, or on which Goods are situated, at any reasonable time after default by the Customer (or before default if The Bellwether Group believes a default is likely), and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated. The Bellwether Group shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract, tort or otherwise, unless by statute such liability cannot be excluded. The Bellwether Group may either resell any repossessed Goods and credit the Customer's account with the net proceeds of sale (after deduction of all repossession, storage, selling, termination fees and other costs), or retain any repossessed Goods and credit the Customer's account with the invoice value less any sum reasonably determined on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
8.4 Where Goods are retained by The Bellwether Group under clause 8.3, the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 ("PPSA") and to object under s.121 of the PPSA.
8.5 The following shall constitute defaults by the Customer:
8.5.1 Non-payment of any sum by the due date to The Bellwether Group;
8.5.2 The Customer intimates that it will not pay any sum by the due date;
8.5.3 Any Goods are seized by any other creditor of the Customer, or any other creditor intimates that it intends to seize Goods;
8.5.4 Any Goods in the possession of the Customer are materially damaged while any sum due to The Bellwether Group remains unpaid;
8.5.5 The Customer is bankrupted or put into liquidation, or a receiver is appointed to any of the Customer's assets;
8.5.6 A Court judgment is entered against the Customer and remains unsatisfied for 7 days;
8.5.7 Any material adverse change in the financial position of the Customer.
8.6 As part of the services provided, The Bellwether Group may place hardware belonging to The Bellwether Group at the Customer's premises. Ownership of that hardware will never pass to the Customer. The Customer will take all reasonable steps to protect it, and will:
8.6.1 Ensure that no employees, agents or third parties tamper with the hardware;
8.6.2 Advise any third parties that the hardware is the property of The Bellwether Group;
8.6.3 Allow The Bellwether Group to enter the Customer's premises at any time to inspect the hardware and ensure its security; and
8.6.4 Acknowledge that The Bellwether Group is entitled to register a financing statement under the PPSA confirming that the hardware belongs to The Bellwether Group.
8.7 Where the Customer's own purchase order, terms of purchase, or other procurement documentation purports to vest ownership of, or any security interest over, any Hardware or Equipment in the Customer or any third party, this clause 8 prevails over any such term and title remains with The Bellwether Group.
9. SECURITY INTEREST FOR SERVICE PROVIDERS
9.1 The Customer gives The Bellwether Group a security interest in all of the Customer's present and after-acquired property that The Bellwether Group has performed services on or to, or in which goods or materials supplied or financed by The Bellwether Group have been attached or incorporated.
10. DISPUTES
10.1 No claim relating to Goods and Services will be considered unless made within 7 days of delivery.
11. LIABILITY
11.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties, conditions or obligations upon The Bellwether Group which cannot by law (or can only to a limited extent) be excluded or modified. Where they cannot be excluded, The Bellwether Group's liability applies only to the minimum extent required by the relevant statute.
11.2 Except as provided by clause 11.1, The Bellwether Group shall not be liable for:
11.2.1 Any loss or damage of any kind whatsoever arising from the supply of Goods and Services, including consequential loss, whether suffered by the Customer or another person, and whether in contract, tort (including negligence) or otherwise; and
11.2.2 Any claim brought by any person in connection with the Goods and Services. The Customer shall indemnify The Bellwether Group against all such claims and losses, however caused, including where caused by the negligence of The Bellwether Group, its agents or employees.
11.3 Where the Customer is located outside New Zealand, equivalent consumer protection legislation in the Customer's jurisdiction (including the Australian Consumer Law, the UK Consumer Rights Act 2015, or applicable European Union consumer protection law) applies in place of the Consumer Guarantees Act 1993 and the Fair Trading Act 1986, to the extent required by that legislation.
12. WARRANTY
12.1 Manufacturer's warranty applies where applicable.
12.2 Goods supplied by The Bellwether Group (other than Hardware or Equipment supplied under a lease, licence or as-a-service arrangement) are warranted free from defects in materials and workmanship under normal use for 12 months from the date of delivery. Hardware or Equipment supplied under a lease, licence or as-a-service arrangement is instead covered by The Bellwether Group's Service Level Agreement and clause 8.
12.3 Services will be performed in a timely, safe, professional and workmanlike manner.
13. CONSUMER GUARANTEES ACT
13.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and Services for the purposes of a business, in terms of sections 2 and 43 of that Act.
14. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
14.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract also sign in their personal capacity, and jointly and severally undertake as principal debtors the payment of any and all monies now or hereafter owed by the Customer to The Bellwether Group, indemnifying The Bellwether Group against non-payment by the Customer. This personal liability does not release the Customer from its own obligations. The signatories and the Customer are jointly and severally liable for payment of all sums due under this Contract.
15. MISCELLANEOUS
15.1 Force Majeure: The Bellwether Group shall not be liable for delay or failure to perform its obligations if the cause is beyond its control, including acts of God, wars, or failure of third parties such as suppliers or subcontractors.
15.2 Failure by The Bellwether Group to enforce any term of this Contract shall not be deemed a waiver of its rights or obligations under this Contract.
15.3 If any provision of this Contract is invalid, void, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected.
15.4 These terms of trade shall be governed by the laws of New Zealand, and the Customer submits to the non-exclusive jurisdiction of the New Zealand courts, regardless of where the Customer is located, including New Zealand, Australia, Europe, the United Kingdom or the United States.
15.5 Reference to any Statutes includes any later amendments or changes to those Statutes.
16. LIEN
16.1 The Customer acknowledges that The Bellwether Group has a lien over all Goods in its possession belonging to the Customer, to secure payment of any or all amounts outstanding from time to time.
17. CANCELLATION
17.1 Orders placed with The Bellwether Group cannot be cancelled without its written approval. Where a cancellation is accepted, The Bellwether Group is entitled to charge a reasonable fee for work done to the date of cancellation, including processing the cancellation itself.
17.2 The Bellwether Group reserves the right to cancel an order at any time by giving the Customer written notice. The Customer shall indemnify The Bellwether Group against all claims and losses arising from such a cancellation.
17.3 Where the Customer has committed to a minimum term of Contract, early cancellation fees will apply as detailed in the New Account Form. The Customer agrees to pay any early cancellation fee, and these Terms of Trade will apply to any default in making that payment.
18. INTELLECTUAL PROPERTY
18.1 All quotes, plans and other material supplied by The Bellwether Group contain intellectual property that cannot be copied or given to other parties without its written consent. The Bellwether Group reserves the right to charge, and the Customer agrees to pay, a consultancy fee for misuse of this material.
18.2 Title to, and all intellectual property in, any Hardware or Equipment supplied by The Bellwether Group under a lease, licence or as-a-service arrangement (including sensors, dashboards and associated devices) remains with The Bellwether Group at all times, regardless of any contrary term in the Customer's own purchase order, terms of purchase, or other procurement documentation.
