Standard Terms and Conditions of Business
These Standard Terms and Conditions of Business (“Conditions”) are to be read in conjunction with and form an attachment to Aiotec Limited’s (“the Company”) proposals or agreement for software, systems and electronic hardware development, service, support and maintenance (“the Proposal”). On acceptance of the Proposal, the Customer (“the Customer”) becomes bound by the Conditions set out below in respect of the assignment (“the Assignment”) set out in the Proposal.
1. Charges and Payment
1.1. An estimate of the charges and related expenses of the Company is provided in the Proposal attached and will remain valid for one month from the date of the Proposal.
1.2. Unless otherwise stated in the Proposal, the Proposal shall not be construed as an offer to perform the Assignment within a fixed time or a fixed price.
1.3. The Company charges are based on an hourly rate for consultant time plus materials and disbursements.
1.4. No charge shall be made for travelling time by the consultant unless it exceeds by a material amount the staff members’ normal travelling time between home and the Company’s office. Expenses directly associated with the Assignment, including travel, meals and accommodation (acceptable to the Company) for the Company staff, materials and equipment costs and appropriate costs for administrative assistance are payable by the Customer. Should the need arise during the Assignment for ancillary services not specified in the Proposal, their provision shall be subject to agreement before expenditure is incurred.
1.5. All charges shall be exclusive of GST and other government taxes and levies, which are properly due whether they are imposed or brought into effect before or after the Customer has accepted the Proposal.
1.6. Unless an alternative payment schedule is set out in the Proposal or is otherwise agreed, the Company shall invoice the Customer on a monthly basis with those invoices being payable within 14 days of the date of invoice.
1.7. If payment is not made by the due date the Company shall be entitled (without prejudice to any other right or remedy available to it) to charge interest on the outstanding amount at a rate of 4% above the ANZ Banking Group Limited commercial overdraft base rate.
1.8. Failure to comply with payment in accordance with these Conditions will invalidate any warranty by the Company for software, hardware and equipment (“goods”) as detailed in Clause 6 hereof.
1.9. If the Proposal links payment to milestones or project stages, the Company shall be entitled to payment on completion of each milestone, stage or intermediate Work-In-Progress billing and shallfurther be entitled to payment if failure to complete the milestone or stage by the due date has been due to delays or problems by the Customer or a third party outside the Company’s control. The Company will notify the Customer with as much advanced noticed as is practical if this situation arises.
1.10. In the event that any part of an invoice is disputed the amount not under question shall be paid promptly in accordance with the applicable payment terms.
2.1. The risk in any goods supplied by the Company during the Assignment will pass to the Customer on delivery, being the time of dispatch of the goods from the Company gate to the Customer (i.e.: ex works).
2.2. The Customer shall be responsible for insurance of the goods from the time of delivery.
2.3. Notwithstanding delivery, property in the goods shall not pass to the Customer until all sums due or owing on any account whatsoever by the Customer has been received by the Company in cash or cleared funds. Until property in the goods passes the Customer shall:
b) Hold the goods on a fiduciary basis as bailee for the Company; and
c) Should the Customer default in payment of moneys owing to the Company or in any of its obligations hereunder or under any other agreement the Company may exercise any and all remedies afforded to a secured party by Part IX of the PPSA including the seizure of the goods.
2.4. In the event of non payment by the due date, the Customer hereby irrevocably authorises the Company, its agents and servants with or without notice to enter on and into its premises occupied by the Customer to search for and remove any of the goods supplied without in any way being liable to the Customer or any person claiming through the Customer with respect of any damage caused by such entry.
3. Ownership of Intellectual Property
3.1. Any copyright or other intellectual property rights, software, products or goods or devices developed or any documentation prepared for the Customer by the Company in the course of performing the Assignment shall be and remain the absolute property of the Company unless otherwise stated in the Proposal or agreed in writing.
3.2. In respect of intellectual property retained by the Company pursuant to clause 3.1 above, the Company subject to payment in full of all sums owing hereby grants the Customer an irrevocable non-exclusive licence to use the intellectual property and software developed as a result of the Assignment without further fee or royalty, unless otherwise stated in the Proposal.
4. Maintenance & Support
4.1. The Company and the Customer may enter into a separate support and maintenance agreement commencing at the expiration of any warranty under these conditions for an additional maintenance fee on terms and conditions set out in the Proposal and/or as set out in a separate written support and maintenance agreement entered into by the parties.
4.2. Maintenance services do not include service where a defect is caused by:
a) Improper use; or
b) Failure by the Customer to provide a suitable physical environment; or
c) Alterations, amendments or attachments to the goods, which have not been approved in writing by the Company; or
d) Fire, flood, lightning, earthquake and any other events over which the Company has no control; or
e) Service work not performed by the Company; or
f) Failure of any hardware or equipment not provided by the Company.
5. Licences of Software/Library Code
5.1. If, in addition to the development of software and other consultancy services, the Proposal and Assignment includes the licensing by the Company to the Customer of existing standard software and library code held by the Company, the Customer acknowledges that in respect of such licences an extra fee or royalty shall be payable on terms as shall be agreed.
5.2. The Customer as licensee agrees and undertakes:a) Not to copy, reproduce, translate, adapt, vary, decompile, dis-assemble, re-assemble or modify the software nor communicate it to any third party without the Company’s prior written consent; andb) Not to make the software available (including programme listings, object and source programme listings, object code and source code) in any form to any person without the prior written consent of the Company; andc) Not to commit any unauthorised third person to examine, repair or in any way alter the software without the prior written consent of the Company.
5.3. In respect of software licensed to the Customer by the Company, the software and its documentation (including any manual) is provided “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The Company does not warrant that the functions contained in the software will meet the Customer’s requirements or that the operation of the software will be uninterrupted or error free. The entire risk as to the quality and performance of the software is with the Customer. If the software is defective, the Customer will assume the entire cost of all necessary servicing, repair or corrections.
5.4. In the event that software under the Proposal incorporates 3rd party software then the 3rd party conditions shall apply and in the event of conflict those 3rd party conditions will take precedence for the sub-component software only.
6. Warranty – Developed Software and Equipment
6.1. Subject to clause 7 the Company shall make good by repair or at the Company’s option by replacement within a reasonable time after request in writing by the Customer, defects which appear in any goods developed pursuant to the Proposal and arising from non-compliance with specifications, faulty development or design, material or workmanship provided that:
a) Such goods have been properly handled and used and have been installed, operated and maintained in accordance with product operating and handling instructions provided by the Company (if any); and
b) Such defects appear within 3 months of delivery; and
c) The Customer has notified the Company in writing within 7 days of the alleged defect first coming to the Customer’s notice; andd) The Customer has stated the date and place of the purchase; and
e) The Customer has not carried out any repairs or other work on the goods without the written consent of the Company.
6.2. The warranty provided under this clause 6.1 only applies to goods capable of removal and return to the Company for repair.
6.3. This warranty does not cover damage from unusual physical or electrical stress, misuse, abuse, power shortage, accident or neglect; nor does it cover repair or replacement outside the original warranty term. Preventive maintenance is the responsibility of the Customer and is not covered under this warranty.
6.4. The Company’s liability under these Conditions and the warranty in clause 6.1 is confined to the Customer named herein, it being agreed that the Company has no liability to any purchaser or on-user of the goods in that the Customer’s rights under these Conditions and any other agreement are not assignable without the prior written consent of the Company.
6.5. Subject to any service contract between the Customer and the Company and with respect to goods not capable of removal and return to the Company, the Company will use its best endeavours to remedy any defect by remote repair, advice or upgrade. In the event that such defect is not able to be repaired in the manner provided above the Company will, at the Customer’s request, undertake repairs at the cost of the Customer.
6.6. Where the Customer has notified the Company of an alleged defect, then if the Company so requires, the Customer will promptly and at its own expense, return the defective equipment or software to the Company.
6.7. The removal of the defective equipment or software and the installation of any repaired or replacement parts shall be performed by the Customer at its own expense.
6.8. The Company shall not be liable to any unauthorised repair or alteration to the goods that has been performed by the Customer.
6.9. The warranty given under clause 6.1 does not apply to any third party hardware or software licences used in conjunction with the Company’s software or hardware and for the avoidance of doubt the Company shall not be responsible for any defect in such goods or its own goods arising as a result of defects in any third party hardware or software.
6.10. The Company does not warrant that:
a) The software is bug free; or
b) The use of the software will be uninterrupted; or
c) The software will meet the Customer’s requirements other than as set out in the specifications.
6.11. If, following acceptance by the Customer of the software, the software is found to have bugs and if the Customer notifies the Company of the bugs within three months of delivery, the Company must immediately rectify the bugs or, if necessary to remedy the bugs, the software at its own expense.
6.12. The Company will not be liable to remedy any defect in the software if:
a) The bug does not result in the performance of the software deviating from the specifications; or
b) The defect is the result of alterations or modifications to the software not authorised in writing by the Company; or
c) The bug is a result of use of the software in combination with equipment, software or services not authorised in writing by the Company; or
d) The bug is the result of the use of the software other than in the operating environment recommended by the Company or other than in accordance with the Company’s reasonable directions; or
e) The bug is the result of the failure of the Customer to meets its obligations under these conditions or any other agreement with the Company.
6.13. Where the Company is providing maintenance services to the Customer under these Conditions and the accepted Proposal the Company warrants that:
a) All work will be carried out with due care and attention; and
b) The Company will use suitably qualified personnel; and
c) All service parts supplied, as part of maintenance services will be new or as new, in good working order and at least functionally equivalent to the item replaced.
7. Exclusion of Warranties and Liability
7.1. Warranties of merchantability or fitness for a particular purpose and all other representations, statements, warranties or conditions whether implied by the Sale of Goods Act 1908 or made by any representative or agent of the Company or otherwise whether expressly or implied are hereby excluded.
7.2. The Customer acknowledges that the goods are being supplied for business purposes and as such the guarantees under the Consumer Guarantees Act 1993 do not apply pursuant to Section 43 of that Act.
7.3. The Company, directors, officers or staff shall not be liable to the Customer (whether in contract, tort or otherwise) for any loss (including but not limited to loss of profits and consequential loss) of any kind whatsoever arising out of the supply of or failure to supply goods as set out in the Proposal.
7.4. If, notwithstanding 7.3, the Company, its directors, officers or staff are found to be liable to the Customer in any circumstances then the maximum combined amount such person shall be liable for to the Customer under any contract or contracts is an amount equal to the lesser of:a) Purchase price of the software and consultancy services provided pursuant to the Proposal; orb) The cost of replacement or repair of any software services provided pursuant to the Proposal;
8. Alterations to Specifications
8.1. If the Customer wishes to alter the specifications developed and agreed pursuant to the Proposal, the Customer shall make a written request to the Company for such alteration or amendment to be made and the alteration and amendment shall not form part of the Proposal and Assignment until agreed by both parties.
8.2. The Customer shall be responsible for all extra charges and time incurred by the Company as a result of the change to the specifications.
9.1. The Customer must ensure that the Company and its employees have full and safe access at all reasonable times to the Customer’s premises and relevant hardware and equipment to allow the Company to complete its tasks under the Proposal.
9.2. The Customer must ensure that the Company’s employees are given such information, facilities, services and accessories as the Company requires to enable the Company to comply with its obligations under the Proposal and these Conditions, in a timely manner and without undue delay.
10. Acceptance Test
10.1. Acceptance testing may either be undertaken on the Company’s or Customer’s premises pursuant to acceptance tests developed and agreed upon by both the Customer and the Company.
10.2. In the event the Customer is to undertake the acceptance testing, the acceptance testing must be initiated within 5 working days after delivery and installation of the software and/or hardware or on such other date as is stated in the specifications developed pursuant to the Proposal.
10.3. The Company shall be entitled to have representatives present at the acceptance tests conducted by the Customer on any software or hardware developed pursuant to the Proposal.
10.4. Acceptance testing is deemed to be completed successfully and the software and/or hardware are accepted by the Customer if:
a) The software and/or hardware operates in accordance with agreed upon acceptance tests; or
b) The Customer fails within 5 working days of the acceptance test to notify the Company of any faults or problems in the operation of the software and such faults or problems prevent the acceptance tests being successfully completed; or
c) The Customer fails to commence the acceptance test within times specified in the proposal unless such failure is caused by the default of the Company; or
d) The Customer notifies acceptance.
10.5. If the Customer considers that the software or hardware has failed to pass the acceptance test then the Customer must notify the Company in writing of the reasons for such failure. The Company shall take all reasonable steps to correct any defect or modify or replace the software or hardware until such time as the software or hardware successfully passes the acceptance test.
11.1. The Customer shall keep the Company indemnified against all costs, claims, demands, expenses and liabilities of any nature whatsoever, including without limiting the generality of the foregoing, claims for death, personal injury, damage to property and consequent loss, (including loss of profits) which may be made against the Company or which the Company may sustain, pay or incur as a result of or in connection with the use or the sale of the goods unless such cost, claim, demand, expense or liability shall be directly and solely attributable to the negligence of the Company or the negligence of a duly authorised employee or agent of the Company.
12. Health and Safety
12.1. The Customer shall be responsible to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and use of the goods and the health and safety of the Company staff working on the Customer’s premises.
13.1. These Conditions in conjunction with the Proposal represent the entire agreement between the parties and all other representations, warranties or promises whether verbal or written are hereby expressly excluded, with the exception of any 3rd party conditions relating to standard software as per clause 5.4 as well as any previously enacted confidentiality agreements.
13.2. These conditions may only be varied by agreement in writing between the parties by a duly authorised representative of both the Customer and the Company.
13.3. The Conditions and Proposal shall be governed by the Law of New Zealand and the parties agree to submit to the jurisdiction of the New Zealand Courts.
13.4. The contents of the Proposal, these Conditions and any information exchanged between the parties as a result of the Proposal and these conditions, shall remain confidential between the parties, but the duty of confidence shall not extend to disclosure of the placement of the contract itself and its nature, or to any information already known to the recipient prior to disclosure, or lawfully received by the recipient from a third party, nor to information published at the date of such disclosure or subsequently through no fault of the recipient.
13.5. The Company reserves the right to subcontract the performance of this agreement or any part thereof to any other party or person it may determine.
13.6. The Company reserves the right to enter upon the premises at which the goods are located for the purposes of ensuring due compliance with any licences and other requirements.
13.7. If any condition or any part of any condition is held by a court of competent jurisdiction to be contrary to law, that provision will be deemed enforceable to the maximum extent permissible and the remaining provisions of this Conditions and any related agreement will remain in full force and effect.
13.8. Neither party shall be in breach of these conditions if its breach is caused by an act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining raw materials, energy or other supplies, labour disputes of whatever nature and any other reason beyond the control of either party. If either party is unable to perform its duties and obligations under the Proposal and these Conditions as a direct result of any such reasons that party must give immediate notice to the other of such inability stating the reasons.
13.9. Unless otherwise stated in a separate schedule to the proposal, as a specific change to these conditions, in the event of conflict between these Conditions and the Proposal, then these Conditions shall prevail.