Loss of Software
- 5.1 If software, enhancements, customisation or documentation (excluding Customer data) is lost by the Customer due to fire or loss damage while in the possession of the Customer, the Supplier will replace the software or such part of the software at a charge based on ten per cent (10%) of the purchase price of the Services under this Agreement.
Supplier Warranty and Guarantees
- 6.1 Payment is to be made by the Customer in full without deduction or setoff and according to the terms set out in the Proposal.
- 6.2 If payment is not made by due date, the Supplier may (at the Supplier's sole discretion)
- charge interest on all overdue accounts at a rate of 5.0% per annum above the current overdraft rate charged by the Company's bankers, calculated on a daily basis until it is all received in full by the Company but without prejudice to all or any of the Company’s rights and remedies under this Agreement. Any payments received by the Company will be applied firstly against such interest;
- suspend delivery of further Services or performance of further work until the account is paid;
- seek reimbursement from the Customer for any legal costs (as between solicitor and client), any debt collection fees and any other costs incurred in the recovery of an overdue debt; and
- exercise any other remedy available to it
- 6.3 If at any time the Supplier deems the credit of the Customer to be unsatisfactory, it may require the Customer to provide at its cost, security for payment and/or the Supplier may suspend performance of its obligations under this Agreement until satisfaction of security is provided.
- 7.1 The Supplier warrants that it will supply software and Services as for the description of the order or pursuant to the Proposal with reasonable care and skill.
- 7.2 The Customer shall accept that upon completion as specified in the conditions of sale and/or the Proposal , the Customer shall not make any claim against the Supplier that software or Services do not meet the Customer's requirements with regard to the completion of the order.
- 7.3 The Supplier will not accept any claim by the Customer for any reasons where the Customer may be prejudiced by the defect or failure of software or Services purchased by the Customer other than through the Supplier, and will not be held liable for economic loss, consequential loss or any other form of loss whatsoever, and the Supplier will have no liability where:
- the defect or failure of software is due to or resulting from damage or misuse, negligent maintenance or care while in possession of the Customer or Customer failure to follow instructions for use of the software.
- the defect or failure of software is due to instructions or designs supplied by the Customer.
- the defect or failure is due to the Customer merging any part of the software with any other software (compatible or otherwise) that is not agreed in writing by the Supplier.
- the defect or failure of Services and delays is due to the Customer or its employees or agents not complying with employment laws, health and safety in employment, copyright, privacy, electronic messaging or any other laws of New Zealand.
- the defect or failure is outside the control of the Supplier due to reasons force majeure caused beyond its reasonable control (war, bad weather, adverse environmental conditions, civil commotion, hostilities, strikes or lock outs, acts of God, fire, governmental regulations or directions, or due to risks associated with an internet based service such as unauthorised users gaining access or downtime attributed to temporary software failure or Customer hardware failure).
- The occurrence of such events shall not give the Customer a right of cancellation of the Agreement.
- 7.4 The Supplier shall not be liable where the Customer infers a right or licence to use or exploit in any way the intellectual property in which the Supplier has been given a right or where the Customer alters the software in any way from the condition in which it was supplied by the Supplier.
- 7.5 The Supplier will use reasonable endeavours to provide continuous access to its Web Design Software Services but does not warrant that the services will be continuously available because of internet malfunction or loss of the internet service or where updates or upgrades are required to the software being used by the Supplier or where remedial maintenance is being conducted by the Supplier or where the operating system or web browser of the Customer does not allow the web site to be displayed or for events outside of the control of the Supplier.
- 7.6 The parties agree that for any breach of default by the Supplier, even for a breach of condition or fundamental term or for a fundamental breach, the Customer's exclusive remedy shall be payment by the Supplier of the Customer's direct damages to a maximum amount equal to the amount paid by the Customer to the Supplier under the Proposal, and in no event shall the Supplier be liable for:
- (whether in contract, tort including negligence or otherwise) indirect, special, economic or consequential damages for loss of profits, reviewne and including loss of data or information or consequential loss of business by the Customer.
- any third party software infringement of any copyright or patent or other proprietary right subject to warranties and guarantees the Supplier agrees to assign or transfer to the Customer from the original supplier of the third party software.
- any hardware infringement of any copyright or patent or proprietary right of the original supplier of hardware.
- any liability or penalty incurred by the Customer for non-compliance to the laws of New Zealand.
- 8.1 The Customer accepts liability for maintaining the confidentiality of any passwords provided by the Supplier and will not disclose passwords to persons in the employ of the Customer who are not authorised by the Customer to use the software.
- 8.2 The Customer accepts liability for ensuring that the software is only used for lawful purposes and the Customer also agrees to accept liability for the actions of its employees and agents breaching the terms and conditions of this Agreement. The Supplier will be the sole arbiter of what are lawful purposes.
Identification and Inspection
- 9.1 The Customer agrees that where Supplier provides intellectual property in the form of written instructions, drawings, designs, models, prototypes or samples and development the ownership of such intellectual property shall remain with the Supplier and the Supplier may use the project in its portfolio to a third party on the condition that the Confidentiality of the Customer is protected. The Customer agrees that it can only use the intellectual property for its own purposes and that it will not give, sell or assign the intellectual property of the Supplier to any third party. Accordingly the parties agree that this Agreement overrides section 21(3) of the Copyright Act 1994. All copyright and any other rights arising out of any project created by the Supplier for the Customer shall arise not by commission but shall be the creation of the Supplier. The Supplier shall remain the first owner of any software or other work and the Customer shall receive a license to use the software or work only.
- 9.2 In the case of software, once payment has been received in full the Customer will be granted a single non-exclusive user license to use the software code. The Customer may not sell or redistribute the software code. The Customer may not use the software code in more than one installation. The Customer specifically consents to Customer using the Customer's project (including permitting reference to the Customer's URL) for business development and marketing purposes.
- 9.3 The parties acknowledge that the Supplier may accept jobs from other clients to develop similar solutions with the same or similar functionality to the Customer's solution, and that the Supplier may replicate and exploit all techniques, structures, designs, libraries and individual modules of program code used in the creation of any solution.
- 9.4 Where the Supplier has used intellectual property provided to it by the Customer, the Customer shall indemnify the Supplier against damages, costs and expenses in respect of which the Supplier may become liable by following such information and including those arising from the infringement of patents, copyrights or trademarks by the Customer.
Consumer Guarantees Act 1993 and implied terms
- 10.1 The Supplier will allow the Customer to inspect work in progress, resulting from the supply of software and Services during normal working hours, provided that the Customer will not unduly interfere with the Supplier’s management of its labour.
Grounds for Termination by the Supplier or Customer
- 11.1 The parties agree that the software and Services set out in the Proposal is acquired for the business purposes of a business only and that the conditions of the Act will not apply to the extent permitted by the Act for software or Services purchased under this Agreement.
- 11.2 To the extent permitted by law and where they are inconsistent with these terms, the provisions of the Sale of Goods Act 1908 are excluded.
- 11.3 Except for warranties, terms and conditions expressly provided for under this Agreement, all warranties, terms and conditions (including, without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law.
Use of Information
- 12.1 This agreement shall be terminated by either party in the event that one party is in breach of any of the foregoing terms and conditions in which case the party may apply for an immediate injunction against the breach without any further liability whatsoever on the part of the party.
- 12.2 This Agreement may be terminated by the Supplier immediately on written notice to the Customer where the Customer:
- Is in breach of any payment obligations owed to the Supplier under this Agreement
- Fails to comply with any quality or standards for the care of or work in progress Software Services or completed Software Services issued by the Supplier.
- Shall commit any act of bankruptcy, or enter into any composition or arrangement with creditors.
- Where the Customer is a Company do any act which would render it liable to be liquidated or if a resolution is passed or proceedings commenced for the liquidation of the Company or if a Receiver is appointed in respect of all or any assets of the Company.
- 12.4No release from obligations. Termination of this Agreement shall not relieve the Customer of its obligations to pay all money owed by it to the Supplier on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of this Agreement shall not relieve the Customer from liability arising from any antecedent breach of the terms of this Agreement.
- 12.5Immediate Steps Upon Termination. Upon the termination of this Agreement in the event of default by the Customer all rights of the Customer granted by this Agreement shall terminate and the Customer will not be entitled to receive any rebate or refund of the whole or any part of the money paid pursuant to this Agreement and the Customer shall return any Software remaining unpaid (meaning licenced Software) to the Supplier.
- 13.1 The Customer agrees that the Supplier may obtain information about the Customer and its financial and business affairs from the Customer or any other person in the course of the Supplier's business, including for credit assessment, debt collection and direct marketing activities, and the Customer consents to any person providing the Supplier with such information.
- 13.2 The Customer agrees that the Supplier may use the information it has about the Customer relating to the Customer’s credit worthiness for its own reference purposes.
- 13.3 The Customer must notify the Supplier of any change in circumstances that may alter the information provided by the Customer to the Company.
- 13.4 If the Customer is an individual the Customer has rights under the Privacy Act 1993 to access information held by the Supplier on that individual and request the correction of such personal information.
Mediation and Arbitration
- 14.1 Any notice required to be given by the Customer must be delivered to the Supplier’s offices at Unit 4, 23 Hall Street, Pukekohe or Post Box 1089 Pukekohe, or given by electronic device at email email@example.com.
- 15.1 In the event of any dispute arising between the parties that are related to the terms of this Agreement, the parties shall appoint a Mediator on an equally shared cost basis and negotiate in good faith to mediate the dispute to endeavour to reach a settlement. In the event that the dispute is not resolved within ninety (90) days of notification by one party to the other party the dispute shall be determined by arbitration under the Arbitration Act 1996 according to the substantive laws of New Zealand.
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- 16.1 Assignability. The Customer will not assign or otherwise transfer or encumber its rights or obligations under this Agreement except with the prior written consent of the Supplier. The Supplier reserves the right to assign other designers or sub-contractors to undertake the Services to ensure quality and on-time completion.
- 16.2 Entire Agreement. This Agreement constitutes the sole understanding of the parties and supersedes all prior understandings, written or oral, which will be of no further force or effect.
- 16.3 Terms and conditions. No alteration or variation of this Agreement will be binding on the Supplier unless authorised by the Supplier in writing.
- 16.4 Waiver. No waiver of any provision of this Agreement will serve as a waiver of any other provision of this Agreement nor as a continuing waiver of such provision and the Supplier will not have waived or deemed to have waived any provision of this Agreement unless such waiver is in writing and executed by the Supplier.
- 16.5 Survivorship.Termination of this Agreement for any reason will not affect such rights and obligations of the parties as are intended to survive the termination.
- 16.6 Severability. Should any part or provision of this Agreement be held unenforceable or in conflict with any applicable laws or regulations, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to such extent as possible, the original business purpose of the part or provision in a valid and enforceable manner, and the remainder of the Agreement will remain binding on the parties.
- 16.7 No partnership, agency or joint venture.This Agreement does not create any relationship of partnership, joint venture or agency between the Customer and the Supplier.
- 16.8 Governing Law. This Agreement shall be governed by the laws of New Zealand and constitutes the complete and exclusive statement between the Supplier and the Customer and no statement or representation not contained in this Agreement shall be binding on the Supplier as a warranty or otherwise.