The following terms of trade ("Terms") shall apply to hardware and licenses ("Products"), and services ("Services") provided by GKC Limited ("us, we, our") pursuant to;
(a) a statement of work ("SOW") signed between you and us and of which these Terms form part of; or
(b) a written quote or estimate which you have accepted.
These Terms will prevail if there is any inconsistency with any other document.
2. Product End User License Agreement (EULA)
In addition to being subject to our Terms, you acknowledge that we are a Partner (reseller) of
(a) Splunk Licenses and that use of the Splunk software by you is governed by the Splunk Licence Agreement which is available online at https://www.splunk.com/en_us/legal/splunk-software-license-agreement.html
You confirm that you have read and agree to the terms of the Licence.
(b) App Dynamics and your use of Add Dynamics software is governed by the App Dynamics End User Licence Agreement (EULA) which is available online at https://legal.appdynamics.com/OnPremise_EULA.pdf (SaaS)
(c) Gemini Data and your use of Gemini software is governed by the Gemini Data End User Licence Agreement (EULA) which is available online at https://support.geminidata.com/learn/tag/eula
(d) Forescout and your use of Forescout software is governed by the Forescout End User Licence Agreement (EULA) which is available online at https://www.forescout.com/wp-content/uploads/2018/01/ForeScout_EULA-w-CLD_1.16.18-WEB.pdf
(e) Cribl and your use of Cribl software is governed by the Cribl End User Licence Agreement (EULA) which is available online at https://cribl.io/license
(f) Elastic and your use of Elastic software is governed by the Elastic End User License Agreement (EULA) which is available online at https://www.elastic.co/eula
3. Quotes and Estimates
Unless presented as a formal quote on GKC letterhead or from GKC's Quoting system, any pricing information we provide to you is an estimate only.
Pricing is only valid from the term specified on the Quote. Orders placed after the quote expiry may be re-priced to reflect changes in the exchange rate between the date of quote creation and order acceptance
You are solely responsible for the accuracy of any information upon which a quote or estimate is based.
4. Statements of Work
Unless otherwise expressly recorded in writing, any pricing information we provide to you shall be deemed to be an estimate only.
You are solely responsible for the accuracy of any information upon which a SOW is based.
Any changes to the Services required subsequent to any SOW or estimate provided by us shall constitute a variation and shall be paid for in addition to pricing set out in the SOW.
If we provide an estimate we are not bound to supply the Services at the estimated price and you are liable for the actual price of any Services purchased as invoiced by us.
SOWs, quotes and estimates, including any discounts provided therein, are only valid if they have been supplied and authorised by the appropriate GKC personnel, in accordance with GKC's Delegated Financial Authority (DFA) Policy.
You agree that you have an obligation to inquire into the authority of any person supplying SOW, quotes or estimates on of behalf of GKC.
You agree that we have no obligation to inquire into the authority of any person placing orders on your behalf.
All orders must be placed in writing to email@example.com and are subject to acceptance by us.
Orders will not be accepted unless supported by a valid Purchase Order. Purchase Orders must be sent directly to firstname.lastname@example.org
Email acceptance, an accepted quote or estimate alone is not sufficient confirmation of an order unless supported by a valid Purchase Order as above.
Once we have accepted an order, you may only cancel an order with our prior written consent and only on such terms as specified by us.
7. Delivery and Risk
Unless specifically requested otherwise, Products will be sent directly to the person accepting the SOW or quote on your behalf. You are responsible for ensuing we have the correct delivery information, including physical address, email address and contact number, for both physical and electronic supply of Products.
Any date for delivery in a SOW, quote, estimate or order is an estimated date only and time shall not be of the essence unless we have given a written commitment to provide the Products or Services by a specific date. A confirmation of order is not to operate as such a commitment. You will accept any Products or Services outlined in your order even if we fail to provide them by an estimated date.
Ownership of Products remains with us and does not pass to you until you pay us the full amount of all moneys owing for those products.
7.4 While ownership of the Products remains with us:
(a) We authorise you to use the Products in your business. We may revoke this authority by sending you notice in writing, by e-mail or other means.
(b) We will not be responsible for any damage caused by our revoking your authorisation to use the Products and/or Licences. You will indemnify us for the cost of any damage caused by that revocation.
(c) You must advise us immediately for any action by any third party (including any of your creditors) that may affect our interest in the Products and/or Licences.
(d) You must strictly comply with any instructions, directions, and applications and any cautions and/or warnings ("our Instructions") we provide you in respect of the License, Products or Services. We will not be liable for any direct or indirect damage, economic loss of any kind or any other loss or expenses caused by or contributed by your failure to comply with our Instructions. You hereby acknowledge that successful performance of the Services requires your cooperation in good faith and to provide accurate information regarding your technology, computers, computer software, business processes, network infrastructure and any other information as we may request from time to time. You agree to provide such information in good faith and authorise us to access your personnel, facilities, information technology, computers, computer software, data and related hardware solely for the purposes of providing the Services.
8. Limitation and Liability
8.1 You acknowledge that you are solely liable for:
(a) ensuring the equipment on which the Products are to be installed on is sufficient for the purpose;
(b) ensuring that the Products are suitable for its intended purpose;
(c) ensuring that all staff who are to receive Training are available on the agreed Training dates;
(d) ensuring the equipment that the Services are to be supplied on are sufficient for the purpose;
(e) ensuring that the Services requested are sufficient for the desired outcome;
(f) any delay or refusal to supply caused by non-compliance of the payment conditions in clause 12;
(g) any additional costs if the equipment, machinery and/or staff are not ready for provision of our Services as previously agreed. These will be charged at our current standby rates; and
(h) any extra costs incurred by us because of any incorrect information supplied by you.
8.2 Subject to clause 8.3, we will not be liable for any direct or indirect loss or damage, including without limitation; economic loss, loss of profits or savings (or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of Products or Services.
8.3 Our liability in respect of all claims for loss, damage or inquiry arising from a breach or our obligations under these Terms, or the breach of a SOW, or from any act or omission by us is limited in each case to the lesser of:
(a) resupply of the Products or Services, and
(b) payment of the reasonable cost of resupplying the Products or Services; and
(c) the price you have paid for the affected Products or Services.
8.4 All claims must be made in writing and are subject to verification or acceptance by us. No claim for any loss, damage or injury arising out of the supply of the Products, License or Services by us, may be brought more than one month after the date the Products were supplied or Services were completed.
9. Your Indemnity
You will indemnify us for any physical, direct and indirect damage, economic loss or other loss or cost or expenses (including legal expenses on a solicitor and client basis), and against any claims or proceedings against us to the extent caused or contributed by you (or any of your agents or employees) or arising from a breach of these Terms or a breach of a SOW.
Unless otherwise stated, all prices in SOWs, quote and estimates are exclusive of GST.
In respect of the payment of the Products, if, during the time between the day the estimate or quote is given and the day you accept the estimate or quote, the value of the New Zealand Dollar has, in our reasonable opinion, significantly shifted against the USA Dollar, AUD Dollar or any other foreign currency in which we purchase the product, we reserve the right to dishonour any estimate or quote given and to issue a new estimate or quote.
11. Additional Costs
Unless otherwise agreed, GKC will organise required travel for the delivery of onsite Services and freight or delivery or Products. Licenses will be delivered electronically via email.
Unless otherwise expressly recorded in writing, any pricing information we provide to you for any additional costs, such as travel and freight, shall be deemed to be an estimate only.
We will take reasonable steps to minimise the cost of travel, freight and delivery to you, and will make the best efforts to arrange this within times specified by you. We will not be liabke for any variation in price or for delivery outside requested timeframes.
Unless otherwise agreed in writing, additional costs, such as travel and freight, will be on-charged to you at the cost to us.
In addition to 11.4 above, $20 administration will be payable by you for each travel booking made by us.
You agree to pay for Products and Services as follows:
(a) You must pay us in cleared funds for Products and Services on the 20th day of the month immediately following the date of our invoice; or
(b) On the dates specified in the estimate or SOW; or
(c) Unless otherwise agreed in writing, any payment for Training must be made in cleared funds prior to the Training commencing.
If we require you to pay a deposit this must be paid immediately on acceptance of the order and is non-refundable.
If you are unable to provide access to staff and/or equipment so that we can provide any of the Services, you may cancel our need to provide that Service. However, you will liable for the cost of any Services delivered up until the point of cancellation and no refund will be paid for the cancellation of a Service.
Payment of any amounts owed to us must be free of any counterclaim, set-off, deduction or any other claim whatsoever.
If in our sole opinion your credit worthiness deteriorates before completion of the Services we may require full or partial payment at any time or the provision of security in a form acceptable to us. If such payment or security is not provided we may refuse to supply or cease the supply of Services to you.
We may charge, and you must pay, default interest at the rate of 2% per month (calculated on a daily basis) until all amounts owed to us are paid in full, including actual legal costs and other costs (including debt collection costs) and expenses incurred by or on behalf of us in enforcing or defending all or any of our rights (including our right to payment for any Products or Services supplied).
If any of the events set out in this clause occur we may without prejudice to and in addition to any other rights or remedies we may have, exercise all or any of the following rights:
(a) delay delivery of any of the Products or Services until the matter is resolved to our satisfaction;
(b) suspend or cancel in whole or in part these Terms or any other contract between us by written notice to you;
(c) recover from you all amounts for any damage, losses, costs (including debt recovery costs) or expenses including actual legal costs and expenses arising from your default or non-payment and obtaining payment;
(d) by notice to you require that all amounts owed to us, whether due or not, are paid immediately.
The events are:
(a) breach of your obligations (including payment obligations) under these Terms or any other contract with us;
(b) you enter into any negotiations for any scheme or arrangement, composition or compromise with your creditors;
(c) you, in our sole opinion, being unable to pay your debts (including contingent liabilities) as they fall due;
(d) you pass any resolution to liquidate or becoming the subject of any liquidation proceedings;
(e) you appoint a receiver or manager over the whole or part of your property or undertaking; or
(f) you, or any of your directors, becoming bankrupt or committing an act of bankruptcy.
14. Non-Solicitation of Staff
You agree that, for a period of two years following the acceptance of any SOW, you will not, and will use their best endeavours to ensure that your directors, staff, agents and contractors do not, solicit, engage, employ or contract any of our employees, contractors or agents. You agree to ensure that your directors, employees, agents and contractors sign such covenant as we may require in relation to non-solicitation of our staff pursuant to this clause.
15. Personal Property Securities Act 1999 ("PPSA")
You acknowledge that these Terms create a security interest in any Products we supply to you as security for your obligations to us under these Terms and this security interest is registerable in the Personal Property Securities Register.
You must sign and deliver any documents and do anything else that we require to ensure that we have a perfected first ranking security interest in the Products under the Personal Properties Securities Act 1999 ("PPSA").
You waive any right receive a copy of a verification statement under the PPSA and agree to the extent permitted by law that:
(a) Where we have rights in addition to, or existing separately from those in Part 9 of the PPSA, those rights will continue to apply and in particular will not be limited by section 109 of the PPSA;
(b) Sections 133 and 134 of the PPSA will not apply; and
(c) You will have none of the rights referred to in sections 116, 117(1)(c), 119, 120(2), 125, 129 and 131 of the PPSA and you waive your rights to object under section 121 and to redeem under section 132.
16. Consumer Guarantees Act 1993
You agree that where the Services and Products are being supplied for the purposes of the business that the Consumer Guarantees Act 1993 will not apply.
17. Privacy Information
You and any Guarantor agree that any information about you provided to us may be used by us at any time for any purposes connected with our business including but not limited to direct marketing, debt collection and credit reporting or assessment. You authorise us to provide such information to any external agency or any party for credit information and assessment purposes and that agency or party are hereby authorised to use and continue to use such information as part of their business services. Any personal information is held at Level 4, 5 Willeston Street, Wellington and you have certain right of access to your personal information under the Privacy Act 1993.
18. Unsolicited Electronic Messages Act 2007
Under the Unsolicited Electronic Messages Act 2007, you must consent to receiving commercial emails from us. Consent can either be explicit, inferred or deemed. We will infer that we have your consent to send you commercial emails from time to time unless you inform us otherwise by letter or email. The email address for unsubscribing to commercial emails is email@example.com
19. Intellectual Property
Title to proprietary information including all ownership rights to copyrights, trademarks and trade secrets in and about our Services shall be our exclusive property.
You will not reverse engineer, decompile, disassemble, translate, or access with third party software any software or script we provide without our prior written consent. You will not allow the reverse engineering, decompiling, disassembling, translation or access using third party software or script we provide without our prior written consent.
We retain all rights in any software we have created, procedures we have developed and material we provide. You acknowledge that you will use your best endeavours to protect our intellectual property and will not use, nor allow the use, of our intellectual property without our written consent.
You agree that time is of the essence in respect of your obligations to us.
We will not be prevented from enforcing any of our rights under these Terms because on an earlier occasion we did not enforce those rights.
All notices to be given pursuant to these Terms will be given in accordance with sections 185 to 189 of the Personal Properties Securities Act 1999.
While you are not entitled to assign your rights under these Terms we may.
You agree that we may issue any proceedings in respect of these Terms in any court that suits us. The law that governs these Terms in New Zealand law.
We may in our sole discretion vary these Terms of trade from time to time by notice to you.
Any provision of these Terms that is held to be invalid or unenforceable for any reason shall be severed from and shall not affect the remaining provisions of these Terms.
You agree that these Terms express the entire understanding between us and that there have been no representations made by or on behalf of us that have been relied upon by you that are not contained in these Terms
You shall not assign all or any of your rights or obligations under these Terms without our prior written consent.
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