Standard Terms and Conditions for the Supply of Products and/or Services
Please read these terms and conditions carefully. These Standard Terms and Conditions are deemed to be included in any agreement you enter into with Hitech for products and services you purchase from us ("Agreement").
In these Terms and Conditions, "we" and "us" means Hitech Solutions Limited, and "you"
means
the CUSTOMER NAME purchasing products and/or services ("Products" and "Services"
respectively) from Hitech Solutions Limited under any agreement.
Hitech Solutions Limited and the CUSTOMER NAME may each be referred to herein as a "Party"
and collectively as the "Parties".
Hitech Solutions Limited Web Site" or "Our Site" means the web site located at: http://www.hitechsolutions.co.nz
These Terms and Conditions will commence on the earlier of:
1. The date we accept your application or
2. The date on which you start to use the Product or Service.
These Terms and Conditions will continue to apply indefinitely unless terminated under one
of the following events:
i. Upon the expiration of the initial or any successive term by you notifying us at
least thirty (30) days prior to the expiration of the then current term that you desire to
terminate the Agreement.
ii. Either party may terminate the Agreement, upon giving the other one month’s
notice, in relation to any or all Products and Services provided by us to you if;
a. The other party is in material breach of these Terms and Conditions and/or the
Agreement and has not remedied such breach within 30 days of being notified of such breach
by the
first party.
b. A receiver, provisional liquidator, administrator or other like person is
appointed over any of the other party’s undertakings or assets or if the other party enters
into
arrangement with any of its creditors or any class of its creditors or it becomes
insolvent.
iii. Despite the above paragraph, we may terminate the Agreement, upon giving you one
month’s notice, in relation to any or all Products and Services provided by us to you
if;
a. In our sole discretion we deem that you are in breach of these Terms and
Conditions
and/or the Agreement and have not remedied such breach within 10 days of being notified of
such breach by us;
b. Immediately if a receiver, provisional liquidator, administrator or other like
person is
appointed over any of your undertakings or assets or if you enter into arrangement with any
of your creditors or any class of your creditors or you become insolvent or otherwise are
unable to pay your debts when they fall due.
c. If your account is unpaid and overdue.
d. If you wish to terminate the Agreement following notification of a modification to
these
terms and conditions in accordance with clause 4 below within 7 days of receiving
notification.
v. If the Agreement is terminated in accordance with clause 9.
vi. If your account is unpaid and overdue in accordance with clause 9v.
vii. Where you desire to terminate the agreement prior to the expiration of the
current initial term, by you notifying us with at least thirty (30) days notice provided
that you pay us all the Fees which would have been due until the expiration of the initial
term, such fees to be calculated according to the formula:
C x A = Termination Fees
Where
C = Monthly Fee
A = Remaining months of agreed term
On termination of the Agreement, we will cease providing the Product or Service to you, and
all amounts which you owe to us will immediately become due and payable.
Any amendment or modification of these Terms and Conditions must be in writing and agreed by both parties.
All hardware supplied under this Agreement will be supplied with the full manufacturer’s
warranty, which we will supply details of in each case.
Except where you have documented SLA’s specifically overriding the provisions of this
clause, we will utilise our best efforts to maintain acceptable performance of the
contracted Products or Services, but we make absolutely no warranties whatsoever, express or
implied, including warranty of merchantability or fitness for a particular purpose.
We do not guarantee continuous service, service at any particular time, or integrity of data
stored or transmitted via our systems or via the internet.
6.1 Neither party will be liable (whether in contract or tort, including negligence or
otherwise) to the other party or any third party for indirect or consequential damages
resulting from any breach of such party’s obligations under this agreement, including
without limitation any claims for loss of business, goodwill, contract, anticipated savings
or profits or any other indirect or consequential loss whatsoever. This applies even when
such party, its officers, employees or contractors are advised that such loss may, or is
likely to, occur.
6.2 Hi-Tech assumes no liability for any loss, injury, claim, liability or damage of
any
kind including loss of business, lost profits, lost data, or failure of security resulting
in any way from your use of the services, including without limitation any errors or
omissions, any content, any delay or failure of performance, or the unavailability or
interruption of service. Accordingly, Hi-Tech Solutions Limited shall not be liable for
direct, indirect, special, incidental, consequential, punitive or exemplary damages of any
kind whatsoever, whether or not foreseeable (including, without limitation, lawyers’ fees)
in any way due to, resulting from, or arising in connection with the services or the failure
of a party to perform its obligations, regardless of any party’s negligence. Termination of
the Agreement shall be your sole and exclusive remedy for any and all damages or injury.
To the extent that any of our Products or Services contains any software that we supply to
you, we license that software to you on a non-exclusive, non-transferable basis for the term
of the Agreement, solely for your use of that Product or Service. Where we do not own the
software, we warrant that we have a right to grant such a licence.
You must use the software only on such equipment as we may designate for its use. You must
use the software in accordance with any directions we provide to you from time to time.
We, or our suppliers, retain ownership of the software at all times, whether in its original
form or as modified. You must not, in whole or in part, copy, attempt to reverse-engineer or
modify, or attempt to combine or incorporate in any other program or system, the software
without our written consent.
You must protect the software and related documents at all times from unauthorised access,
use or damage.
Each party must keep any information provided by the other party, which is marked
confidential or which they ought reasonably to know is treated as confidential, from
disclosure to any third party and use that information solely for the purposes of the
relationship described in this Agreement. Each party consents to the other obtaining urgent
interlocutory relief to restrain any breach or anticipated breach by the other of these
confidentiality obligations.
You acknowledge that all intellectual property rights obtained or provided by us and used in
the provision of the Products and Services are and shall remain our sole property and you
shall do all such things as are necessary to protect our title to these intellectual
property rights. You must return or delete from media, all those intellectual property
rights at our request.
In return for us providing these Products and Services to you, you must pay us the relevant
fees, charges and costs specified in this Agreement (“Fees”). Any increase in Fees will not
be effective unless agreed by both parties in writing.
Despite the provisions of this clause:
i. You are solely responsible for the use of the Products and Services and for all
payment
of any Fees arising from the use or provision of the Products or Services, whether or not
the user had your authority.
ii. We will bill you for your use or our provision (as the case may be) of Products
and
Services as follows:
a. In advance for standard recurring charges such as support fees and data network
charges;
b. In arrears for variable usage charges;
c. Where you agree to pay us by credit card, your credit card will be debited the
due amount
on the due date stated on the invoice;
d. Where you have arranged a credit account with us, payment will be due on the due
date
stated on the invoice. If your account is not paid by the 20th of the month following or
receipt by you of a correctly specified invoice, we reserve the right to charge a late
payment fee on any overdue amounts on an invoice at the rate of 15% per annum of the amount
overdue, calculated from the due date to the date of actual payment in full. We also reserve
the right to place your account on ‘Stop Credit’ whereby a cessation in the supply of
products and services will apply until such time as the account is brought back up to date.
Reasonable notice will be provided (5 days’ Notice) before such action takes place. Please
note: This may result in your system/s being in-operable in the ‘Stop Credit’
Period.
iii. You must pay Goods and Services Tax and any taxes, duties, stamp duties,
imposts,
levies or government charges relating to the Agreement or the supply or usage of the
Services or Products.
iv. You are responsible for the cost of any communication expenses you incur to
access the
Products or Services.
v. If your account is unpaid in part or in whole for a period of one month from the
due
date, we reserve the right to terminate your access to the products and/or services at any
time in our discretion and to refer your information to a debt collection agency or credit
reference agency without notice to you.
vi. If you have a genuine dispute in relation to amounts we have charged you, you
must pay
the undisputed charges and notify us immediately you become aware of any disputed charges.
You must give us full details for the reason of dispute as well as evidence of the grounds
of dispute. We will investigate the issue and work together to resolve the dispute as
quickly as possible.
You acknowledge that we may be obliged to provide assistance to law enforcement agencies in respect of your acquisition or use of the Products and Services and that you will not make any claim against us in relation to that assistance.
i. The parties agree to use their best efforts to resolve any dispute that may arise
under
this Agreement through good faith negotiations. No party shall commence any arbitration or
litigation in relation to this Agreement unless it has first invited the chief executive of
the other party to meet with its own chief executive for the purpose of endeavouring to
resolve the dispute on mutually acceptable terms.
ii. Any dispute arising under this Agreement which cannot be settled by negotiation
between
the parties or their respective representatives shall be submitted to mediation before
commencing any litigation. Either party may initiate mediation by giving written notice to
the other party.
iii. If the parties cannot agree on a mediator within seven days of the notice, then
the
mediator will be selected by the President for the time being of LEADR (Leading Edge
Alternative Dispute Resolvers) in New Zealand or its successor.
iv. The parties shall continue to perform their obligations under this Agreement as
far as
possible as if no dispute had arisen pending the final settlement of any matter referred to
mediation.
Neither party may assign or transfer their rights or responsibilities under these Terms and
Conditions without prior written consent from the other party.
Hitech may assign or transfer our rights and responsibilities under these Terms and
Conditions and the Agreement to any party.
We will give you written notice (30 days) in advance if we intend to do this.
Hitech may subcontract the performance of any of our responsibilities under these Terms and
Conditions and the Agreement to any person, subject to your prior written consent in each
case, such consent not to be unreasonably withheld or delayed.
THE CUSTOMER may not assign or transfer any of your rights or responsibilities under these
Terms and Conditions and Agreement to any person without our prior written consent.
i. You authorise us to obtain credit information from a credit reporting agency and information about your commercial activities or commercial credit worthiness from a business which provides that information to enable us to apply our credit policy. You also authorise us to obtain from and give to any credit providers information about your credit arrangements. This information may include any information about your credit worthiness, credit standing, credit history, credit capacity or other information that credit providers are allowed to give or receive from each other under the Privacy Act, 1993 (as amended from time to time).
Neither Party shall be deemed in default of these Terms and Conditions or the Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, war, fire, natural disaster, accident, act of government, strikes, unavailability of material, Telco capacity or supplies, any failure of a Third Party Provider to supply goods or services associated with or comprising a Hitech Product or Service, shortages of or failure to deliver hardware and/or software not attributable to an act or failure to act of the Party seeking the protection of the force majeure or any other cause beyond the reasonable control of such Party (“Force Majeure”), provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof. In the event of such a Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure.
Notices under these Terms and Conditions and the Agreement shall be in writing and shall be
deemed given when delivered
i. Personally
ii. By e-mail (with confirmation of receipt)
iii. By overnight mail or conventional mail (registered or certified, postage prepaid
with
return receipt requested)
Notices shall be addressed to Hi-Tech Solutions Limited at:
Email: accounts@hitechsolutions.co.nz
PO Box 101-068 North Shore Mail Centre
Level 3, Takapuna Finance Centre, 159 Hurstmere Road
Takapuna, Auckland 0622
Notices shall be addressed to the customer at the Postal, Email or Facsimile addresses
currently held by Hitech Solutions Limited and as supplied by the customer. It is the
customer’s responsibility to ensure that Hitech has up-to-date records of the customer’s
details at all times.
These Terms and Conditions and the Agreement shall be governed by, and construed in accordance with, the laws of New Zealand, and the Courts of New Zealand shall have sole jurisdiction to hear and determine any disputes arising under or in connection with these Terms and Conditions and the Agreement.
Any waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
By accessing this web site, you are agreeing to be bound by these web site Terms and
Conditions of Use, all applicable laws and regulations, and agree that you are responsible
for compliance with any applicable local laws. If you do not agree with any of these terms,
you are prohibited from using or accessing this site. The materials contained in this web
site are protected by applicable copyright and trade mark law.
Use License
Permission is granted to temporarily download one copy of the materials (information or
software) on Hi-Tech Solutions Ltd’s web site for personal, non-commercial transitory
viewing only. This is the grant of a license, not a transfer of title, and under this
license you may not: