Terms of Business
1. Definitions
In these Agreement, the following words will have these meanings:
Applicable Laws means all New Zealand Acts of Parliament and all New Zealand orders, by laws and regulations in any way governing or affecting the provision of the Goods and Services including without limitation, any relevant act, by-law, order, rule, regulation, or other lawful requirement.
Business Day means a New Zealand day which is not a Saturday, Sunday or public holiday in New Zealand and between the hours of 9am to 5pm NZ Standard Time.
Client means the person or entity to whom the Goods and Services are to be supplied and its successors and permitted assigns and any person acting with ostensible authority on behalf of the Client.
Confidential Information means all information and records wherever located (including business information, accounts, correspondence or Intellectual Property) and which (either in their entirety or in the precise configuration or assembly) are not publicly available and in each case whether or not recorded.
Goods means the goods, including software supplied by CBS to the Client at any time.
GST means goods and services tax in terms of the New Zealand Goods and Services Tax Act 1985, at the rate prevailing from time to time.
Intellectual Property means any patent, design, trade mark, copyright, know-how, trade secret, confidential information and any other proprietary right or form of intellectual property (whether protectable by registration or not) in respect of any technology, concept, idea, data, documentation, written material, program or other software (including, without limitation, in source and object codes), specification, formula, drawing, program, design, system, process, business name, trade name, trade mark, service mark, logo, mark, style or other matter or thing, existing or conceived, used, developed or produced by any person or used in relation to such technologies which is not already available in the public domain and Intellectual Property Rights shall be construed using the same meaning.
Services means services supplied by CBS to the Client at any time.
Service Fees means the agreed service fees payable by the Client to CBS and as updated from time to time.
Software means all software that is made available by CBS to the Client and includes software that CBS may develop specifically for the Client.
2. Acceptance
2.1 The Client accepts and is immediately bound by these terms on the placing of each order for Goods or Services. CBS reserves the right to amend these terms by written notice to the Client or by uploading amended terms to its website.
3. Service and Goods
3.1 CBS will provide the Services and Goods to the Client in accordance with all applicable laws. Unless agreed otherwise, the Client is responsible for obtaining any necessary permits or licences required in applicable jurisdictions in connection with the installation, operation and provision of the Goods and Services.
3.2 CBS will provide such further services to the Client as are reasonably incidental to those specified or as may be agreed as additional services by the parties from time to time.
3.3 When performing or providing the Services and Goods to the Client, CBS will devote such skills and time as are necessary. In doing so, CBS will ensure that the Services are carried out and Goods delivered with the necessary expertise, experience, resources, capacity and ability to, and will, perform the Services and deliver the Goods in a timely manner.
3.4 Where a fault is reported as intermittent or where the exact location of a fault cannot be determined, CBS will charge for all work required to fully diagnose and fix the fault to the satisfaction of the Client. The Client acknowledges that such faults can be difficult to trace and may take time to resolve.
3.5 Where required to perform the Services, CBS is entitled to subcontract any element of the Services, to third parties without the Client’s specific consent.
4. Quotations
4.1 Unless otherwise specified by CBS, any quotation or estimation given by CBS for the provision of Goods and Services will be valid for 14 days from the date of the quotation. CBS reserves the right to alter quotations or estimations due to circumstances beyond its control or any variation to the Goods and Services requested by the Client.
5. Fees
5.1 Unless otherwise specified by CBS, payment for all Goods and Services will be made on the 20th day of the month following the date of the invoice. .
5.2 If the Client disputes the accuracy of any invoice, it must within 20 Working Days after receipt of the invoice, give notice of that fact to CBS. The Client must pay the undisputed portion of the invoice and may withhold payment of the portion disputed until the dispute is resolved.
5.3 CBS may at its sole discretion require payment of a non-refundable deposit by the Client prior to providing any Goods and Services.
5.4 Interest at the rate of 2% above the rate of CBS’s bank overdraft rate will accrue on all overdue invoices. Such interest will accrue daily from the date on which payment was due until the date on which payment is received by CBS. .
5.5 CBS reserves the right to suspend the provision of Goods and Services if any payments are not received by the due date.
5.6 The Client shall be responsible for all costs (including but not limited to legal and internal administration costs) of an incidental to the enforcement or attempted enforcement of CBS’s rights under these terms.
6. Access
6.1 Where access is required to provide the Services the Client will ensure and is wholly responsible for providing sufficient access to CBS in a manner which meets health and safety requirements.
7. Hours of Business
7.1 Unless specified otherwise the Services will be provided on New Zealand Business Days. CBS will endeavour to provide Services outside these hours where necessary and it is reasonably able to do so.
7.2 Services provided outside of New Zealand Business Days may incur a premium rate over and above the standard hourly rate.
8. Warranties
8.1 CBS does not guarantee that Services or Goods provided by CBS will be error-free.
8.2 CBS does not give any warranty about the Service or Goods and does not warrant that the Services or Goods will meet the Client’s requirements or that they will be suitable for any particular purpose in any jurisdiction. To avoid any doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability and fitness for purpose.
8.3 To the maximum extent permitted by law, CBS excludes all liability and responsibility to the Client (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Client data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Services or Goods.
8.4 The Client acknowledges that where the Services or Goods are being provided for the purposes of a trade or business the provisions of the New Zealand Consumer Guarantees Act 1993 (and equivalent legislation) do not apply.
8.5 Any third-party software is provided at the Client’s own risk and CBS does not warrant and is not liable for any matters in relation to such software including any patches, updates or fixes offered by the manufacturer of the software.
8.6 Under no circumstances will either party be liable to the other (or to any of their directors, employees, contractors, representatives or agents) for any special indirect or consequential loss whatsoever, or for any loss of profits, loss of revenue or loss of anticipated savings.
9. Intellectual Property
9.1 All Intellectual Property rights and protection of all Confidential Information in respect of the Goods and Services are retained by CBS and cannot be distributed by the Client without CBS’s prior written consent.
9.2 The Client will immediately inform CBS of any infringement or potential infringement of CBS’s Intellectual Property rights.
10. Confidentiality
10.1 Each party will hold the Confidential Information of the other party in strict confidence and will not disclose any Confidential Information of the other party to any person without the prior written consent of the other party. .
10.2 The Confidential Information may only be disclosed to such employees and advisors of the receiving party as need to know the Confidential Information and who have entered into an agreement or undertaking equivalent to that set out in these terms to keep the Confidential Information confidential.
10.3 This paragraph 10 will survive the termination of the provision of the Goods and Services to the Client.
11. Privacy Act 2020
11.1 The Client irrevocably agrees that CBS is authorised to:
11.1.1 Access, collect and retain any information it may require about the Client; and
11.1.2 Use the information for the purposes of providing or obtaining a credit reference, debt collection, notification of a default or marketing.
11.2 The Client must notify CBS of any changes in circumstances that may affect the accuracy of the information provided by the Client.
11.3 The Client has the right of access to, and correction of any personal information held by CBS.
12. Independent Contractor Status
12.1 CBS acknowledges that it is an independent contractor and nothing express or implied in these terms will be construed as constituting either party as the partner, agent, employee, officer representative of, or as a joint venture with CBS. Neither party will make any contrary representation to any other persons.
13. Termination
13.1 The Client’s use of the Goods and Services may be suspended or terminated immediately by CBS if:
13.1.1 the Client breaches any provision of these terms and such breach is not remedied within five working days of the Client receiving notice in writing from CBS detailing the breach;
13.1.2 the Client becomes insolvent, ceases trading, enters into a compromise or arrangement with its creditors, is placed into receivership, liquidation, bankruptcy or administration or has any of its assets compulsorily disposed of for the benefit of a creditor (in each case other than as part of a solvent reconstruction or amalgamation to which CBS has consented); or
13.1.3 the Client does or permits anything that causes (or would likely to cause) significant and material harm to CBS or its business or to that CBS’s reputation and goodwill.
13.2 Except in the case of termination pursuant to clause 13.1, each party agrees that it has no right to claim any loss or damages from the other party solely because of the termination of this Agreement.
13.3 Following termination:
13.3.1 all Service Fees and any other monies due to CBS under these terms up to the date of termination will become immediately due and payable;
13.3.2 the Client will not be entitled to a refund or part refund of any Fees already paid by the Client.
14. General
14.1 Any failure by a party to enforce any clause of these terms, or any forbearance, delay or indulgence granted by that party to any other party will not be construed as a waiver of the first party’s rights under these terms.
14.2 If any provision of these terms is held invalid, unenforceable or illegal for any reason, these terms will remain otherwise in full force apart from such provision which will be deemed deleted.
14.3 These terms are governed by and construed in accordance with the laws of New Zealand. The parties irrevocably submit to the exclusive jurisdiction of the Courts of New Zealand with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with these terms.