Maintenance Services Terms and Conditions
1. DEFINITIONS
In these Terms:
“Computer System” means the electronic information systems including hardware, devices, equipment, software, peripherals and communications networks owned, controlled, operated or used by you;
“Confidential Information” means all information provided by or on behalf of a one party to the other party that is designated as confidential or which the recipient ought to reasonably know is confidential, including, non public, commercially sensitive, or other secret information relating to first party’s business and affairs;
“Default Event” means one or more of:
(a) a default by you under these Terms, including failure to make
payment when due;
(b) you suffer an insolvency event; or
(c) a change in the effective control or management of you, without our prior written consent;
“Force Majeure Event” means any event or circumstance beyond our reasonable control that prevents us or may prevent us from performing the Maintenance Services;
“GST” means goods and services tax as defined in the Goods and Services Tax Act 1985;
“Intellectual Property Rights” includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), trade marks, designs, domain names, rights in databases, confidential information, trade secrets, tooling design, know how, specifications, manufacturing processes and all other proprietary rights;
“Security Device” means any USB key or computer component utilised to secure the CLS (Client License Server) license;
“Hexagon Customer Portal” means the website found at https://customers.ps.hexagonmi.com/public/Login.aspx.
“Licence” means the licence you have to use the relevant Hexagon software;
“Maintenance Services” means the following services supplied or provided by us to you being:
(a) access to the Hexagon Customer Portal – Software Licence details and media file downloads made available as applicable;
(b) access to eSupport – Nexus Community and online forums;
(c) licence protection – replacing Licences in the event of theft, loss, change or damage to a security device; and
(d) troubleshoot Licence interruptions.
“Order” means the order submitted by you to us for the purchase of the Maintenance Services:
(a) using the Order Form; or
(b) by otherwise contacting us;
“Order Form” means the form for you to order the Maintenance Services from us, in the form available on our website;
“Pre Installation Checklist” means the pre installation checklist we provide to you;
“Price” means the amount payable by you for the Maintenance Services as set out on the Order Form that you submit to us in accordance with clause 2.2, or otherwise communicated by us to you;
“Terms” means these Maintenance Services Terms and Conditions;
“we”, “us”, “our” means Joinery IT (2022) Limited (company number
8500587), agents, successors, or assigns; and
“you” and “your” means the person named in the Order Form as ordering the Maintenance Services, or on whose behalf we are otherwise contacted.
2. CONTRACT
2.1 These Terms apply to the supply of Maintenance Services by us to you. All other terms and conditions are expressly excluded unless otherwise agreed in writing. If there is any conflict between the Order and these Terms, these Terms prevail.
2.2 By submitting the Order, you accept these Terms. We will treat any person holding themselves out as your agent, employee, contractor or representative as authorised by you to submit the Order.
2.3 A binding contract is deemed to be formed between us and you when we notify acceptance of your Order by email, in person, or by telephone or otherwise act on your Order. We may accept or reject the Order at our discretion.
2.4 Once we have accepted the Order, you may not cancel the Order without our prior written agreement.
2.5 These Terms will continue until the earlier of:
(a) the date that is shown as ‘Maintenance Expiry’ in the Hexagon Software Licence Manager.
(b) the date that these Terms are terminated in accordance with their provisions; and
(c) the date that you and we otherwise agree.
2.6 Clauses which, by their nature are intended to survive expiry or termination of these Terms, including this clause 2.6, and clauses 8, 9, 10, 11 and 12.9, continue in force.
2.7 Any collection, use, processing or disclosure of Personal Information (as that term is defined in the Privacy Act 2020) by us will comply with our then current Privacy Policy as set out on our website from time to time.
3. MAINTENANCE SERVICES
3.1 Subject to clause 2.5, we must provide the Maintenance Services from the date we accept the Order under clause 2.3 (if applicable) until the date that is shown as ‘Maintenance Expiry’ in the Hexagon Software Licence Manager.
3.2 We will use our reasonable endeavours to perform the Maintenance Services at the place and time, and by the method, we and you agree from time to time. However, we will not be liable for costs, losses, damages or claims relating to any failure or delay in supply (including because you have not complied with clause 3.3 or clause 7), and you will not be able to terminate the Order or these Terms due to any failure or delay in supply. If we are unable to supply the Maintenance Services as agreed solely due to any action or inaction of yours then we will be entitled to charge a reasonable fee for resupplying the Maintenance Services at a later time and date.
3.3 You must:
(a) have suitable internet connectivity for us to perform the Maintenance Services;
(b) maintain your Computer System as reasonably required to ensure that we can perform the Maintenance Services; and
(c) when using third party software which is provided as part of, or in connection with, the Maintenance Services, comply with the terms and conditions regarding the use of such software.
4. PRICE
4.1 Unless otherwise agreed by us, the price of the Maintenance Services will be the Price, plus all costs, expenses and disbursements incurred by us. The Price is exclusive of GST unless specifically stated otherwise. You will pay all applicable GST in addition to the Price.
5. DEPOSIT AND PAYMENT
5.1 We will provide you with a valid GST tax invoice after we accept the Order.
5.2 Subject to clause 5.3, full payment of the Price is required on the 20th of the month following the date of the invoice or as otherwise specified on the invoice. The method of payment will be as directed by us. Time for payment is of the essence.
5.3 If a deposit is payable, the deposit must be received by the due date we specify and we will not commence the Maintenance Services or begin work on your behalf until the time we receive the deposit.
5.4 You must pay all amounts owing to us without set off or deduction. We may, in our discretion, allocate any payment received from you towards any invoice that we determine and may do so at the time of receipt or at any time afterwards.
5.5 Without prejudice to our other rights and remedies under these Terms or at law, if you fail to make payment of any amount due to us, we may, in our discretion, either:
(a) refuse to supply the Maintenance Services and cancel the Order; or
(b) charge interest on the amount owing at the rate of 10% per annum from the due date for payment until payment is received in full.
5.6 All expenses, disbursements and legal costs incurred by us in the enforcement of any rights contained in these Terms will be paid by you, including our full solicitor’s fees and debt collection agency fees.
6. DELIVERY
6.1 You must provide us access to all locations (including your Computer System) necessary to provide the Maintenance Services.
6.2 We will provide the Maintenance Services in accordance with professional standards of diligence, care and attention.
6.3 The Maintenance Services are provided for your use only and we accept no responsibility to any other person other than you.
7. YOUR OBLIGATIONS
7.1 You will provide to us, in a timely manner (at your cost):
(a) access to your premises and to other facilities, and make decisions (including approvals), as reasonably required by us in order to perform the Maintenance Services and our obligations under these Terms; and
(b) all documents, information or other materials as we may reasonably require for the performance of our obligations, and ensure that the documents, information or materials are complete and accurate in all material respects.
7.2 If we are to perform the Maintenance Services at any location owned, leased, or otherwise controlled by you, you will provide at your expense a safe working environment for all our personnel attending that site in compliance with all relevant legislation and regulations, including the Health and Safety at Work Act 2015.
7.3 You must only use the results of the Maintenance Services for the purpose for which the Maintenance Services are provided.
8. CONFIDENTIALITY
8.1 Each party must not at any time (except in the proper course of performing its duties under these Terms) disclose to any person any Confidential Information of, or relating to, the other party, without the prior written approval of that other party. Each party will ensure that its employees, contractors, officers and agents do not, without the written permission of the other party, use Confidential Information supplied to it for any purpose that is not related to these Terms. Nothing in this clause 8 prohibits disclosure of information which:
(a) is in the public domain otherwise than as a result of a breach of confidence; or
(b) is required to be disclosed by law or any government or governmental body, authority or agency having authority over a party to these Terms.
9. INTELLECTUAL PROPERTY
9.1 Unless otherwise agreed in writing between the parties, all Intellectual Property Rights in the Maintenance Services and all new Intellectual Property Rights that are developed, commissioned or created under or in connection with the Maintenance Services will be owned by us as those rights arise.
10. WARRANTY AND LIABILITY
10.1 To the extent that our liability is not otherwise limited or excluded, and to the maximum extent permitted by law, our aggregate liability to you whether in tort (including negligence), contract, at law (including for a misrepresentation), breach of statutory duty or otherwise for any loss, damage or injury in relation to Maintenance Services is limited to the Price actually paid by you for the Maintenance Services.
10.2 Despite anything else contained in these Terms and to the maximum extent permitted by law:
(a) we will not be responsible or liable for:
(i) acts or omissions of third parties;
(ii) any failure to perform our obligations under these Terms or otherwise, to the extent the failure is directly caused by you failing to comply with your obligations under these Terms, or by the negligence or misconduct of you or your personnel;
(b) no claim relating to the Maintenance Services will be considered unless made within 10 working days of supply of the relevant Maintenance Services and must be accompanied by a copy of the original invoice;
(c) the parties agree and acknowledge that the Maintenance Services are supplied by us and acquired by you in trade within the meaning of the Fair Trading Act 1986, and accordingly that sections 9, 12A, and 13 of the Fair Trading Act 1986 will not apply to these Terms, and that it is fair and reasonable to exclude their application;
(d) the parties agree and acknowledge that they are both in trade, and that the Maintenance Services supplied by us and acquired by you are supplied or acquired in trade, and accordingly that the provisions of the Consumer Guarantees Act 1993 will not apply to these Terms, and that it is fair and reasonable to exclude their application;
(e) to the fullest extent permissible by law, our warranties are limited to those set out in these Terms, and all warranties, conditions or other terms implied by law (including under Part 3 of the Contract and Commercial Law Act 2017) are excluded, and to the extent that they cannot be excluded, liability for them is limited to $100;
(f) where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
(i) supplying the relevant Maintenance Services again; or
(ii) paying the costs of having the relevant Maintenance Services supplied again; and
(g) for the purposes of this clause 10 you acknowledge that you had a reasonable opportunity to review these Terms, discuss them with us, and receive advice from your legal advisor, if you wished to do so.
10.3 To the maximum extent permitted by law, we are not liable for any loss or damage of any kind whatsoever arising from the supply of Maintenance Services by us to you, including direct or consequential loss and loss of profits, whether suffered or incurred by you or another person or entity and whether in contract or tort (including negligence) or otherwise and irrespective of whether that loss or damage arises directly or indirectly from the Maintenance Services provided by us to you.
10.4 You indemnify us against any loss, liability, cost, or expense (including legal expenses on a full indemnity basis) suffered or incurred by us as a result of your breach of these Terms, any act, default, omission or representation made by you, and your failure to comply with instructions provided by us in relation to the Maintenance Services. This indemnity includes liability for indirect and consequential loss.
10.5 You indemnify us and our personnel against claims of all kinds however caused or arising (including all sums paid to compromise or settle claims proceedings and actions out of court) brought by any third party arising out of or in connection with the performance, purported performance or non performance of the Maintenance Services. This clause 10.5 contains promises that confer, and which are intended to confer, a benefit on our personnel and accordingly the provisions of Subpart 1 of Part 2 of the Contract and Commercial Law Act 2017 applies to our personnel despite our personnel not being party to these Terms.
10.6 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms.
11. Expiry and Termination of these Terms
11.1 We may terminate these Terms by giving written notice to you with effect from the date specified in the notice:
(a) if you commit a material breach under these Terms;
(b) you are subject to a Default Event; or
(c) if a Force Majeure Event continues for a period of 30 days.
11.2 Termination or expiry of these Terms is without prejudice to the rights or obligations of the parties accrued up to the date of termination or expiry.
11.3 On termination of these Terms:
(a) you must promptly pay us all amounts due and owing; and
(b) each party must return (or destroy) the other party’s Confidential Information.
11.4 We will not be liable for any delay or failure in the performance of any of the obligations imposed by these Terms, to the extent that the failure is due to a Force Majeure Event.
11.5 We may suspend our provision of the Maintenance Services to you if you are in breach of these Terms.
12. GENERAL
12.1 These Terms constitute the sole understanding of the parties in relation to its subject matter and supersede all prior understandings, written or oral, which will be of no further force or effect. No alteration or variation of these Terms will be binding on us unless authorised by us in writing. To the extent permitted by law, we may alter or change these Terms by notice to you.
12.2 The United Nations Convention on Contracts for the International Sale of Goods 1980 does not apply to these Terms.
12.3 You must not assign, subcontract or transfer all or any part of your rights or obligations under these Terms (including undergoing an effective change in your management or control) without our prior written consent. We may assign any right or obligation without your approval as well as subcontract any obligation to third parties.
12.4 If any dispute arises between the parties arising out of or in connection with these Terms or the Maintenance Services performed, including any question about its existence, validity or termination, the party claiming a dispute must give notice in writing to the other party describing the nature of the dispute and the remedy sought. The parties must first seek to resolve such dispute by meeting and using good faith, reasonable endeavours to resolve the dispute.
12.5 If the dispute remains unresolved 20 business days after notice has been given, the dispute must be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the New Zealand Dispute Resolution Centre.
12.6 Notice may be given personally, posted or transmitted by email to the intended recipient at their last known address or email address. A notice given under these Terms will be deemed to be validly given:
(a) in the case of delivery, when received;
(b) in the case of posting, on the second day following the date of posting; or
(c) if emailed, one hour after the email is sent unless a return email is received by the sender within that hour stating that the addressee’s email address is wrong or that the email cannot be delivered,
provided that any notice received after 5 pm (in the time zone of the recipient) on a working day or on any day that is not a working day will be deemed to have been received on the next working day.
12.7 A waiver of any provision of these Terms will not serve as a waiver of any other provision. A waiver will only be effective if it is in writing and signed by the waiving party.
12.8 The relationship between us is, and will be for all purposes, that of a principal and independent contractor, and nothing in these Terms or the Order will be taken as constituting any other relationship, including an agency, joint venture or partnership.
12.9 These Terms are to be construed and governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand.
12.10 If any provision in these Terms is held to be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.