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10 July 2013
v2.7
STANDARD TERMS AND CONDITIONS
These General Terms contain general provisions that apply to all Equipment and Services provided to you under the Agreement. The General Terms form
part of the Agreement between you and Business Mechanix.
1
Agreements
1.1
Agreements. All Services requested by you shall require a Services
4.2
Access. Where reasonable or necessary for us to meet our obligations to
Schedule or a Statement of Work to be executed by both parties. Any such
you, give permission to access property and land and you will obtain
Services Schedule or Statement of Work, on their execution, will be
permission if we need to cross other people’s land or put Equipment on
their property (for example a neighbour or landlord) or require anything
deemed part of this Agreement.
from a third party to provide, repair and maintain Equipment or Services).
1.2
Precedence. In the event of any conflict between the various parts of this
Agreement, the following descending order of precedence shall apply,
4.3
Customer equipment. Unless otherwise agreed in writing, you are
unless the context otherwise requires:
responsible for any of your equipment or any item not provided, managed
a.
the relevant Services Schedule or Statement of Work;
or maintained by us, and must ensure it is technically compatible with the
b.
this Master Services Agreement (excluding the Schedules);
Services based on technical requirements you have been specifically
c.
the Proposal
supplied for this purpose, such technical requirements to be based on
systems that you advise us of or that we have been able to identify.
2
Business Mechanix’s Responsibilities
4.4
Care of Equipment. You agree to look after all Equipment for which title
2.1
Services. We will provide Services to you:
has not yet passed under clause 6.2 and to pay for any repair or
a.
in accordance with any Specifications and Service Levels;
replacement if it is damaged while located on your premises. However,
b.
by any time agreed in writing with you, or otherwise within a
you will not be liable for wear and tear or damage caused by us or anyone
reasonable time;
acting on our behalf. This requires you to, without limitation:
c.
using reasonable care and skill; and
a.
protect it from power fluctuations, radio or electrical interference or
d.
using people who have the necessary experience and qualifications.
abnormal environmental conditions;
b. not allow it to be affected by any virus;
2.2
Equipment. When we provide Equipment to you, it will be:
c.
not alter, repair or recalibrate it;
a.
safe, durable, and in good condition;
d.
let us know immediately if it is lost or damaged;
b.
tested for known viruses if it contains software.
e.
agree with us where to install it; and
We will pass on the full benefit of any manufacturer’s warranty you are
f.
not move it without first obtaining our permission, which we will not
eligible for in respect of Equipment you purchase from us.
unreasonably withhold.
2.3
Faults. If you report a fault, we will respond in accordance with any Service
4.5
Internet policies. If you purchase any Equipment or Services that connect
Levels or otherwise within a reasonable period of time. You will be
to or function over the Internet, you will adhere to the agreed policies on
required to pay our standard charges if:
usage.
a.
no Services Agreement is in place; or
b.
we agree to work outside the hours agreed
4.6
Abuse and fraud. You will use the Equipment and Services for lawful
c.
we find there is no fault; or
purposes only and will not use the Services or Equipment yourself, or allow
d.
we find that you contributed to the fault.
anyone that has access to or uses your Services or Equipment to use them
for fraudulent or destructive purposes
2.4
Suspension or restriction of Services. We may suspend or restrict Services
where reasonable or necessary, for example, to undertake repairs or
4.7
Responsibility for others. You acknowledge that you are responsible for
maintenance? We will endeavour to give you at least 5 Business Days’
anyone who accesses or uses the Services or Equipment, and will ensure
notice of scheduled repairs or maintenance if this is likely to affect your
that anyone you are responsible for also meets your obligations and
Services. Where practical we will schedule any outage to minimise the
responsibilities under the Agreement.
We will take reasonable
impact on you.
precautions to preserve security although we will not be responsible for
ensuring that the Services will not or cannot be misused by you or any third
3
Acceptance
party.
3.1
Deliverables are provided throughout the project and you will test and
provide feedback to us within 5 business days following delivery.
5
Charges and Credits
5.1
Our Fees. You will pay all of our charges in relation to the Services and
3.2
User Acceptance Testing. When applicable, you will develop test plans and
Equipment, plus any applicable goods and services or similar taxes
tests that you will provide to us prior to commencement of the project that
(“Fees”)? Fees will be calculated at our Schedule of Standard rates, unless
will be used by you in the acceptance of the deliverables. Both parties will
otherwise agreed, and using the details recorded by us.
agree to the content and context of the User Acceptance Tests.
5.2
Commencement of Fees. We may begin invoicing you once we have
3.3
At the conclusion of the project, when both parties reasonably consider
commenced working on the deliverable and in either weekly or monthly
that a Service or Equipment is capable of passing its User Acceptance Tests,
instalments based on the work performed in that week or month.
either on first delivery in accordance with this clause, or following its
Equipment and Recurring Fees that are fixed may be billed in advance, but
correction in accordance with clause 3.6, we will deliver the Service or
otherwise Fees are normally billed in arrears.
Equipment to you with a Delivery Notice.
5.3
Payment date. Unless otherwise agreed, you must pay all undisputed Fees
3.4
User Acceptance Tests. Following Delivery for testing, you will perform the
by the agreed date. We will provide you with a weekly or monthly invoice
User Acceptance Tests on the Deliverable. No Deliverable will fail its User
for the Services rendered each week or month. You will pay all invoices by
Acceptance Tests to the extent such failure relates to any modification to
the 20th of the month following the date of the invoice. We will invoice
the Service or Equipment by you that was not approved by us.
you for equipment and software on receipt of your order, delivery will only
be made following your payment of those invoices.
3.5
Notification of pass/fail. Following completion of the User Acceptance
Tests, you will notify us in writing whether the Service or Equipment has:
5.4
Disputed Fees. If you dispute a Fee in good faith, you may withhold
a.
passed its User Acceptance Tests, in which case the Deliverable will
payment of that Fee if you:
be taken to be accepted; or
a.
Have notified Business Mechanix in writing to PO Box 3122 Shortland
b. failed its User Acceptance Tests, in which case the provisions of clause
Street Auckland 1140 or by email with clear details of your dispute to
3.7 will apply.
business@mechanix.co.nz within 5 working days of invoice issue
date.
3.6
Deemed acceptance. You will be deemed to have accepted the Services or
b. Cooperate with us to promptly resolve the disputed Fee.
Equipment if you fail to notify us, within two weeks after Delivery, whether
c.
Pay all undisputed Fees by the due date, or if no due date is specified
the Services or Equipment has passed or failed its User Acceptance Tests.
within 10 Business Days of receiving the relevant invoice;
3.7
Acceptance failure and rework. If you notify us in accordance with clause
5.5
If we determine, in good faith, that the disputed Fee does not in fact
3.5 of any failure of a Service or Equipment to pass its User Acceptance
contain an error, we will notify you and, within 5 Business Days of receiving
Tests, we will correct all such failures and resubmit the Service or
notice, you must pay the Fee. If the dispute relates to billing errors, we
Equipment to you in accordance with clause 3.3.
may credit or debit, as applicable, the net difference between any
discovered overcharge or undercharge.
4
Customer Responsibilities
4.1
Cooperation. You will provide reasonable cooperation to enable us or our
5.6
Late payment. All Fees not subject to a genuine dispute that are unpaid 10
agents to install, repair and maintain Equipment and Services.
Business Days after the due date, or 5 Business Days after our notice under
Commercial in Confidence
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10 July 2013
v2.7
clause 5.5 in the case of a disputed Fee that we have determined does not
accordance with the applicable licensing requirements. We may suspend,
in fact contain an error, are subject to interest equal to 5% of the original
block or terminate your use of any software if you fail to comply with any
invoice, per month or part thereof, until payment is made and you will be
applicable licensing requirement.
required to pay all of the costs incurred by us in collecting any late payment
from you. These costs will be at-cost where an external agency is used or
6.7
Restrictions. Unless expressly permitted under the applicable licensing
at an applied rate of $125/hr for internal collections time.
terms and conditions, you are not granted any right to:
a.
use software or Services provided by us for or on behalf of third
5.7
Credit approval. In some cases, you may need to pay a deposit or provide
parties;
a guarantee as sectravurity for paying future charges. If you exceed any
b. any source code, and you will not reverse engineer, decompile,
credit limit applied by us, we may restrict or suspend all or part of the
modify, enhance, or copy software provided by us, or prepare any
Services without notice to you, however, you will remain liable for all Fees
derivative works from such software; or
incurred in excess of the credit limit. The default credit limit that will apply
c.
modify Equipment or Services, or combine Equipment and Services
is $2,000.00 however you may request a larger credit limit which we may,
with any other goods or services not provided by us.
at our discretion, grant to you.
6.8
Breach of licensing requirements. You will indemnify, defend and hold us,
5.8
Changes to Fees. We may change the Fees:
our Related Companies and suppliers harmless from and against any third
a.
if we agree to change the Services at your request;
party claims arising out of your breach of the licensing requirements in this
b.
after any specified Initial Term for a particular Service, on 3 month’s
clause.
notice to you.
6.9
IP indemnity. We indemnify you against any claim, suit, action or
5.9
Estimates. All prices stated in the Agreement are the correct prices unless
proceeding (together, “ ction”) brought against you to the extent that the
it is stated that they are estimates. Where it is stated that an amount is an
Action is based on a claim that your use of the Services in accordance with
estimate, you acknowledge that an estimate does not foresee every
the Agreement constitutes a breach of a New Zealand patent, copyright,
circumstance. We will advise you in writing if we believe an estimate will
trade secret or other proprietary right existing at the date of the
be exceeded and you will remain liable for all Fees incurred in excess of the
Agreement, provided that we may at our option and cost defend or settle
Estimate.
the Action and you must fully co-operate at all times in defending or
settling the Action. Where you fail to comply with your obligations under
5.10
Quotes. Where we give you a quote in relation to Services or Equipment,
this clause, we will not be liable to indemnify you against the Action. If an
the quote will remain valid for 20 Business Days from the date it is given,
Action is threatened or commenced, we will have the option of doing any
unless stated otherwise in the quote. However, we may vary or withdraw
one or more of the following:
a quote at any time before you accept it by notice in writing.
a.
obtain the right for you to use the Services which are the subject of
the claim;
5.11
Request for Return. We will accept requests for credits or returns of
b. modify the Services to make them non-infringing; or
Equipment that is faulty, non-conforming, or that we incorrectly order or
c.
grant to you the right to use a different service of equal value and
deliver, but only if the return is made within 7 days of delivery. No
worth.
restocking fee is payable for the return of faulty or non-conforming
Equipment. We will not accept requests for credits or returns of software
6.10
Exclusion from IP indemnity. We are not liable for, and you indemnify us
which you have opened.
against, any loss (including, without limitation, loss of profits, data or
business opportunity), cost, expense, demand or liability whether direct,
5.12
Travel. Travel required to provide requested services is not charged for
indirect, consequential or other, and whether arising in contract, tort,
equity or otherwise, which results from a claim by a third party alleging
sites within a
20km radius of Business Mechanix 124 Nelson Street
Auckland 1010 - charges of $0.77 per km apply to sites attended outside
infringement of that third party’s intellectual property rights due to:
this area. Travel time is charged at half the agreed hourly rate for sites
a.
use of the Services or Equipment in combination by any means and in
any form with software or equipment not specifically approved by us
outside a 20km radius of Business Mechanix 124 nelson Street Auckland
1010.
or in a manner or for a purpose not reasonably contemplated or
authorised by us;
b. modification or alteration of any part of the Services or Equipment by
5.13
Minimum Onsite Hours. Where a resource of Business Mechanix has been
any person other than us without our prior written consent; or
requested to be onsite and the location of the site is greater than 100km
c.
use of any materials or software provided by any person other than
from Auckland CBD a complete working day of 8 hours minimum will be
us (“Third Party Materials”)?
charged regardless of the time spent onsite. Travel time will also be applied
d. We provide no warranty or indemnity for Third Party Materials
as per clause 5.12.
e. Notification of infringement. You will notify us as soon as possible of
any actual, threatened or suspected infringement of our intellectual
6
Property Rights
property rights and of any claim that use of the Services or Equipment
6.1
Passing of risk. Risk of any loss of, or damage to, Equipment will pass to
infringes the rights of any other person.
you upon delivery to your premises or receipt by you. Where requested
by us, you will fully insure Equipment in both your and our name for its
7
Termination
replacement value from the time when it is delivered to you or you
7.1
Termination at any time. The Agreement may be terminated in full or in
otherwise take possession of it, and until the time payment is made in full
part:
for it or it is returned to us.
a.
at any time by you on 3 month’s written notice to us, following which
clause 7.3 will apply
6.2
Passing of title. We will retain all legal and beneficial ownership of all
b. at any time after the Initial Term, by either party on 3 month’s written
Equipment unless and until we receive payment in full for it. Until
notice to other, following which clause 7.3 will not apply.
Equipment has been paid for in full, you must not sell, dispose of, grant any
interest in or otherwise part with possession of it.
7.2
Termination by you. You may immediately terminate the Agreement by
written notice to us if we:
6.3
Intellectual property. We either own, or are licensed to use, the
a.
fail to remedy any material breach of the Agreement within 20
intellectual property rights in the Services provided to you, including all
Business Days after receiving your written notice of the failure; or
copyright, trade mark and design rights relating to the Services, and any
b. are Insolvent.
software used in providing the Services.
Termination under this clause may be of the entire Agreement or of any
6.4
Copyright, title to software, Equipment and numbers. Unless specifically
part affected by the material breach or Insolvency.
stated in any agreement to which we are a party, we or our suppliers retain
copyright, title and all property rights in and to, and you do not own and
7.3
Charges for early termination. If the Agreement ends before the Initial
will not acquire any right of ownership to, any Service, Equipment, goods,
Term, you must pay us the Cancellation Charges, unless you have
intellectual property or software provided by us. This includes, but is not
terminated the Agreement by written notice under clause 7.2 because of
limited to, any copies of improvements, developments, modifications or
our default or Insolvency. You acknowledge and agree that our
changes to them, or to any patents, copyrights, trademarks, Internet
Cancellation Charges in these circumstances are a genuine pre-estimate of
Protocol or other electronic addresses, numbers or codes allocated to you.
our loss arising from early termination of the Agreement during the Initial
You may not sell, licence or provide any of these to anyone else without
Term. Cancellation Charges are payable in the same manner as Fees under
our permission.
clause 5.
6.5
Changes to addresses, numbers or codes. After giving you not less than 1
7.4
Return of Equipment and software. Upon termination or expiry of the
month’s notice, we may change any electronic address, number or other
Agreement, or when Equipment in which title has not passed to you is no
code allocated by us to you, but only if it is necessary to do so.
longer needed or we reasonably consider any of such Equipment is at risk
(as defined in section 109 of the Personal Property Securities Act 1999),
6.6
Software license. We or our licensors grant you a non-exclusive and non-
you will surrender and immediately return any of that Equipment,
transferable license to use software provided with the Equipment or
including all copies, to us or provide us or our agents access as provided
Services, including any related documentation, solely for your own internal
for under clause 4.2 to reclaim that Equipment. If you fail to do this, you
business use and the purposes for which it is provided, and otherwise in
agree that we (or our agents) may act as your agent to enter any premises
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10 July 2013
v2.7
we reasonably believe contains that Equipment to recover it, without
have 10 Business Days to amend our offering, which you agree to accept if
incurring any liability to you or anyone else, and in that case you must pay
it is equal to or better than the offering you can obtain from the other
our costs, including legal costs on a solicitor and client basis, in exercising
provider. We agree to review the Fees for our Services if, as a result of
this right.
your obtaining Additional Services from another provider, your total
payments to us are varied by 10% or more.
7.5
Security interest. You acknowledge that we have a security interest in any
goods as the term is defined in the Personal Property Securities Act 1999
9.3
Confidentiality. Both Parties must always keep Confidential Information
provided by us under the Agreement until such time as you have paid for
confidential and may not copy it, or use it for any purpose other than that
the goods in full. You acknowledge that any agreed goods purchase
for which it was provided, except with the other’s written consent? Party
request constitutes a security agreement for the purposes of section 36 of
may disclose Confidential Information only to its Related Companies,
the Personal Property Securities Act 1999.
employees, suppliers, agents and contractors who need it to enable the
recipient to carry out the purpose for which it was provided, but only after
7.6
Personal Property Securities Act
1999
(PPSA). Legal and equitable
first informing them of its confidential nature. You agree not to disclose
ownership of all products supplied (as listed on invoices set to you) shall
Confidential Information to any third party engaged in reviewing costs and
pricing, without first obtaining our permission. If requested, a Party must
be retained by Business Mechanix Limited until payment is made in full.
You acknowledge the right of Business Mechanix to register a security
return the other Party’s Confidential Information?
interest under the PPSA 1999 on the Personal Property Securities Register
9.4
Compelled disclosure. If either Party is legally required to disclose
in respect of products which may not have been paid for by you. You
acknowledge that this clause and this agreement:
Confidential Information of the other Party, the other must, if it is legally
a.
grants to Business Mechanix a security interest over the collateral and
permitted and practical to do so, first be informed of this and all relevant
circumstances before the Confidential Information is disclosed and
all your present and after-acquired property;
b. that the security interest relates to all goods (collateral) which have
disclosure must be restricted only to whatever the legal advisors of the
been supplied to you by Business Mechanix
(as per Business
Party being required to disclose the Confidential Information reasonably
Mechanix’s invoice to you) but which you have not paid for;
believe must be disclosed by law.
c.
Business Mechanix’s costs of registering a Financing Statement or a
Financing Charge Statement shall be paid by you;
9.5
Password for online access? You will keep any passwords or codes (“ ccess
d. on the request of Business Mechanix you will promptly execute any
Codes”) used to access online information maintained by us confidential in
documents and do anything else required by Business Mechanix to
accordance with clause 9.3 and will only disclose them to those of your
ensure that Business Mechanix’s Security Interest in the collateral
employees and agents who need them to access the information for you.
created by this agreement constitutes a Perfected Security Interest
You will ensure that the online information is accessed only for your own
over the goods comprising collateral.
business use.
e. you agree not to allow any person to file a Financing Statement over
the collateral without prior consent of Business Mechanix and you will
9.6
Customer information. During our relationship, we may collect
information about you and may:
notify Business Mechanix immediately in writing if you become aware
of any person taking steps to file a Financing Statement against any
a.
hold the information and share it with our employees, Related
collateral which is subject to the Financing Statement of Business
Companies, suppliers, contractors and other agents, but only where
Mechanix
this is necessary to enable us to offer or provide you the Services,
send you invoices, check that your responsibilities are being met, or
7.7
Continuing rights and responsibilities. The ending of the Agreement does
otherwise to administer and enforce the Agreement;
not affect any rights and responsibilities under the Agreement which are
b. use the information for case studies and marketing of our business;
c.
obtain information by monitoring telephone calls for training
intended to continue, or come into force after the Agreement ends.
purposes or other communications
d. use any information about you for statistical purposes, so long as you
8
Liability
are not identified.
8.1
Warranties excluded. Unless otherwise expressly stated in the Agreement,
all warranties, representations or conditions relating to Equipment or
9.7
Benefit to our suppliers and Related Companies. You acknowledge and
Services
(whether express, implied or whenever arising) whether
agree that the benefit of your obligations, and the limitations, exclusions
originating in statute, law, trade, custom, or otherwise that would (but for
and other provisions of the Agreement, extends to our Related Companies
this clause) apply, are expressly excluded to the fullest extent permitted by
and suppliers of any services, equipment or software provided in
law.
connection with the Services, under the Contracts (Privity) Act 1982.
8.2
Liability accepted by you. You accept liability to us for failure to meet any
9.8
Provision to Related Companies. Where we agree that any of your Related
payment obligation and for expenses actually and reasonably incurred by
Companies may receive or use the Services provided under the
us or anyone else (including in enforcing our rights or anyone else’s rights)
Agreement, you acknowledge that the Related Companies do not obtain
as a direct result of your material breach of the Agreement or failure to
any direct right to enforce the Agreement against, or to recover any
take reasonable care.
amount from, us. However, you may enforce that right against or recover
those amounts from us on their behalf, to the extent that the right would
8.3
Exclusions and limitations. Neither Party (or any of its Related Companies)
otherwise be enforceable, or the amount recoverable, under the
will be liable to the other Party, or to anyone else, under or in relation to
Agreement if it had been provided directly to you.
the Agreement for any consequential, incidental, or indirect damages for
any cause of action (whether in contract or tort or under statute) or for
9.9
Supply by our Related Companies. Services and Equipment may be
expenses or any other liability for loss or corruption of data, loss of
provided to you by us or any of our Related Companies. Notwithstanding
business, revenue, profit or goodwill, or anticipated saving.
anything else in the Agreement, only the Related Company named as the
supplier under, or which signs, any Service Schedule or Statement of Work
8.4
Unless otherwise expressly stated in any Service Schedule or Statement of
incurs any obligation or liability to you with respect to the Service Schedule
Work, the maximum liability of either Party under or in relation to the
or Statement of Work. All references to Business Mechanix in the
Agreement for loss, liability, damages, costs and expenses to the other
Agreement refer equally to Business Mechanix Limited or the Business
Party and its Related Companies for failure to perform obligations
Mechanix Related Company providing Services or Equipment under any
(whether under the Agreement or in tort or under statute) is limited to , in
Service Schedule or Statement of Work.
any 12 month period an amount equal to twice the total Fees for the
affected Services and Equipment, but in any event not more than a total of
9.10
Subcontracting. We may subcontract any of our responsibilities to our
$100,000 in any 12 month period.
Related Companies and agents, in which case we will remain liable to you
for meeting all those responsibilities.
8.5
Neither Party will be liable to the other for failure to perform obligations
under the Agreement because of events beyond the reasonable control of
9.11
Resolving disputes. Both Parties will attempt to resolve any dispute
the Party affected (or its Related Companies and suppliers).
relating to the Agreement at the lowest possible level of escalation. If the
dispute is not resolved at that level, the dispute may be referred by either
9
General
Party to the senior management or executives of either or both Parties and
9.1
Safety and security? Each Party will meet the other’s notified and
both Parties will then use their respective best endeavours to resolve the
reasonable safety and security requirements when on the other Party’s
dispute within a further 40 Business Days. While following the above
premises. Each Party will also be responsible for complying with all
procedures to resolve the dispute, neither Party is relieved from its
applicable laws for maintaining safe premises, and in particular will comply
obligations under the Agreement and the Agreement remains in full force
with the Health and Safety in Employment Act 1992 and all regulations and
and effect.
codes of practice made under that Act.
9.12
Consumer Guarantees Act. You confirm that you are acquiring all the
9.2
We may provide new services. We will have the first right to offer any
Services and Equipment for the purposes of a business as defined in the
Additional Services you wish to obtain, provided our offering is competitive
Consumer Guarantees Act 1993. The provisions of that Act do not apply
as to price, quality and availability with offerings available to you from
to Services we provide under the Agreement.
other providers. You agree to let us know if you can obtain a better
offering of the Additional Services from another provider. We will then
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Page 3 of 5
10 July 2013
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9.13
Notices. Notices required under the Agreement must be in writing and
e. any written or electronic document that is incorporated into the
sent to the relevant contact addresses in the Agreement. If sent by post
Agreement by reference in one of the above documents.
to that contact address, the notice will be assumed delivered 3 Business
Days after it has been posted. If sent by fax or by email to that contact
10.3
“Business Days” means Monday to Friday inclusive, excluding national
address, the notice will only be assumed delivered once a correct
public holidays and the provincial anniversary day applicable to the
transmission confirmation slip or acknowledgement is received.
affected customer site and the provincial anniversary day applicable to our
Notifications for termination, breach or default may not be sent by email
office.
and if sent to us will be addressed to our company secretary.
10.4
“Business Hours” means 8:30am to 5:00pm on Business Days?
9.14
Assignment. Neither Party may assign its rights or responsibilities under
the greement without the other Party’s written consent, which will not
10.5
“Cancellation Charges” means:
be unreasonably withheld or delayed. Consent should normally be given
a.
Two times the amount of any fixed monthly Fees otherwise payable
for an assignment to a Related Company unless there are good reasons not
by you for the Services (or part of the Services) cancelled, from the
to do so and may also be granted subject to reasonable conditions (for
date of cancellation to the end of the term in the Service Schedule(s)
example, the solvency of the assignee). However, we may assign this
or Statement(s) of Work for the Services being cancelled; plus
Agreement to any Entity which is a successor to our business.
b.
25% of the amount of any other Fees, including any other anticipated
Fees (“variable Fees”) otherwise payable by you for the Services (or
9.15
Changes to General Terms. We may change the General Terms or any
part of the Services) cancelled, from the date of cancellation to the
Product Specification at any time. We will publish details of changes at
end of the term in the Service Schedule(s) or Statement(s) of Work for
least 1 month before the change is to take effect. If you reasonably
the Services being cancelled. This will be calculated based on your
consider the change will have a major detrimental effect on the Services,
total average monthly variable Fees over the preceding 6 months for
then you may advise us of the details of this in writing. We may allow you,
the Services (or part of the Services) cancelled; plus
at our sole discretion, to:
c.
reimbursement to us of any costs (for example, for installation,
a.
remain on the existing General Terms or relevant Product
equipment or project management) and/or Fees
(monthly or
Specification;
otherwise) that have been waived, or amortised under the
b. in the case of changes to the General Terms, terminate the
Agreement on the following basis: Cost to pay = total cost (Business
Agreement without becoming subject to the payment of Cancellation
Mechanix Standard price) x (remaining months of relevant period
Charges under clause 7.3; or
over which the fees were waived or amortised / total months of
c.
in the case of changes to a Product Specification, terminate the
relevant period over which the fees were waived or amortised).
Services under that Product Specification without becoming subject
to the payment of Cancellation Charges under clause 7.3 in relation
10.6
“Confidential Information” includes, but is not limited to, all information
to those Services.
and other material relating to the disclosing Party’s business, employees
and customers that the disclosing Party makes available to the recipient,
9.16
Other changes. Subject to clause 9.15 or any other variation process that
or that comes to the recipient’s knowledge, and includes the contents of
the Parties have agreed under the Agreement, any significant variation to
the Agreement, but excludes information that is generally available to the
the Agreement must be recorded in writing and signed by the authorised
public
(but not because the recipient, or anyone the recipient is
representatives of both Parties.
responsible for, has disclosed it), or that the recipient or a third party have
developed independently.
9.17
Independent contractor. We provide our Services under the Agreement as
an independent contractor. The Agreement does not create or evidence a
10.7
“Customer”, “you” or “your” means the customer as identified in the
legal partnership, employer/employee, principal/agent or joint venture
Agreement.
relationship.
10.8
“Equipment” means equipment and hardware (including any software),
9.18
Governing law. The Agreement is governed by, and will be construed in
cabling or other items of personal property sold, leased or otherwise
accordance with, the laws of New Zealand. Both Parties submit to the non-
provided for your use by or through us either as a separate item or bundled
exclusive jurisdiction of the New Zealand courts.
with a Service.
9.19
No waiver. No failure, delay or indulgence by either Party in exercising any
10.9
“Fees” is defined in clause 3?1 and includes Cancellation Charges?
power or right conferred on that Party by the Agreement will operate as a
waiver of that power or right. A single exercise of any of those powers or
10.10
“Initial Term” means the initial term defined in the written agreement
rights does not preclude further exercises of those powers or rights or the
between Business Mechanix and you, and includes any extension or
exercise of any other powers or rights under the Agreement.
addition to the initial term. If not specified anywhere else, the initial term
will be 12 months and the term will extend by a further 12 months
9.20
No responsibility for tax treatment. You acknowledge that you have not
automatically unless terminated in conjunction with 7.1.
relied on any information from anyone in the Business Mechanix
concerning the tax treatment of any payments under the Agreement, or
10.11
“Insolvent” means, in relation to a Party, that:
any other matter relating to tax in relation to the Agreement, the Services
a.
a Party is, becomes, or is deemed to be, insolvent or bankrupt;
or Equipment, and that you are responsible for determining the correct tax
b.
a Party makes an assignment for the benefit of, or enters into or
treatment of these matters.
makes any arrangement or composition with, its creditors; or
c.
a Party goes into receivership or has a receiver, trustee and manager
9.21
Invalidity. Any provision of the Agreement that is invalid or unenforceable,
(or either of them) (including a statutory manager) appointed in
will be deemed deleted from the Agreement and this invalidity will not
respect of all or any of its property;
affect the other provisions of the Agreement, all of which remain in full
d. any resolution is passed, or any proceeding is commenced, for the
force and effect to the extent permitted by law, subject to any
winding up or liquidation of a Party; or
modifications made necessary by the deletion of the invalid or
e. that Party directly or indirectly assigns or transfers, or attempts to
unenforceable provision.
assign or transfer, any obligation, liability or interest of that Party
under the Agreement in breach of the Agreement,
9.22
Employment. You will not offer direct employment to or contract services
f.
and “Insolvency” has a corresponding meaning?
directly with a resource we have provided, or take that resource through
any third party, either during the term of the appointment or for 12
10.12
“Party” means Business Mechanix or you (the customer), or both Business
months after termination, without first obtaining our written consent. In
Mechanix and the customer, as the context requires.
the event of any resource taking a permanent role with you, Business
Mechanix will charge you a placement fee amounting to 15% of the
10.13
“Product Specification” means any product specification or service
resources first year’s salary package?
specification for the Services, and includes any written or electric
document incorporated by reference into any product specification or
service specification.
9.23
Promotion. The Customer consents to receiving periodic email and mail
correspondence from Business Mechanix. The Customer grants the right
to Business Mechanix to include the Customer its name, brand and images
10.14
“Related Company” has the meaning given in the Companies ct 1993?
in
any promotional material without notice or consent.
10.15
“Service(s)” means all products and services that we (or any of our Related
Companies) provide to you (unless any of those products and services are
10
Definitions and Interpretations
already covered by an existing agreement with you) and includes products
10.1
“ dditional Services” means any services other than the agreed Services
and services described in any Service Schedule or Statement of Work, any
you are receiving from us.
Additional Services and any Equipment provided as part of a Service.
10.2
“ greement” means:
10.16
“Service Levels” means the service levels or targets expressly identified in
a.
the Business Mechanix Proposal;
the Agreement (if any) which are, unless expressly stated otherwise in the
b.
related Service Schedules or Statements of Work;
Agreement, targets which we will use all reasonable endeavours to ensure,
c.
related Product Specifications;
but do not guarantee, will be achieved.
d.
these General Terms; and
Commercial in Confidence
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10 July 2013
v2.7
10.17
“Service Schedule” means any Service Schedule signed by Business
Mechanix (or any of our Related Companies) and you.
10.18
“Statement of Work” means any Statement of Work signed by Business
Mechanix (or any of our Related Companies) and you.
10.19
“Business Mechanix”, “we”, “us” or “our” means Business Mechanix
Limited.
10.20
“Business Mechanix Proposal” means the written agreement that has been
signed by you for the supply of Services or Equipment.
10.21 In the Agreement, unless the context otherwise requires:
a.
headings are for convenience only and do not affect interpretation;
b.
the singular includes the plural and vice versa;
c.
unless otherwise stated, all references to dollars, value and price are
to the New Zealand currency and exclude goods and services tax;
d. a reference to any statute includes any amendments, re-enactments
or replacements to that statute from time to time.
10.22
“User cceptance Tests”, in relation to any Services or Equipment, means
assessment of the Service or Equipment by you to determine whether it
meets its Requirements.
10.23
“Warranty Period” means 90 days following final cceptance of all
Services and Equipment under the relevant Services Schedule or
Statement or Work.
Commercial in Confidence
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Attachments