1. INTERPRETATION.
1.1 In these terms of trade, unless the context otherwise requires:
Agreement means these standard Terms of Trade and the attached Schedule A (Pricing) and if applicable, Schedule B (Service Levels & Support Hours).
You and your means the party that has engaged the Services of Contrast Technologies.
Confidential Information means any secret process, formula, trade secret, technical knowledge relating to the Services or any information relating to the business of either Party which is within or may come to the other Party’s knowledge during the term of the Agreement concerning the organisation, methods, business or finances of the other Party, its customers or clients, its administration and operation and similar information concerning its subsidiaries and associated companies.
Contrast Technologies means Contech Partners Limited which trades as Contrast Technologies. For the avoidance of any doubt, where in these terms the reference to “we” or “us” is made that means Contrast Technologies.
Contrast Technologies’ System means any system developed by Contrast Technologies to deliver the Services.
Day means calendar day.
GST means Goods and Services Tax.
Intellectual Property means any discovery, invention or novel design, secret process or improvement discovered, invented, developed, or devised (whether or not registrable as designs or patents), any trademark, design software or other copy right work.
Notice means any notice sent pursuant to clause 19.
Parties means You and Contrast Technologies together.
Pricing means the Pricing as outlined in in Schedule A.
Party means You or Contrast Technologies.
Services means the Managed IT Services described in the attached
Schedule B (Service Levels & Support Hours) of the Agreement.
Service Levels & Support Hours means the Service Levels & Support Hours as outlined in Schedule B.
Working Day means any day of the week other than—
(a) a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, Monarch’s Official birthday, Waitangi day, Te Rā Aro ki a Matariki/Matariki Observance Day, Labour Day, and the relevant regional anniversary day applicable to you; and
(b) a day in the period commencing with 25 December in any year and ending with 15 January in the following year; and
(c) if Waitangi Day or Anzac Day falls on a Saturday or Sunday, the following Monday.
2. SERVICES
2.1 During the Term Contrast Technologies will provide You with the Services as specified in Schedule B.
2.2 You acknowledge that any work required which is not specified in Schedule B will be the subject of Contrast Technologies of a written quotation and will be performed and charged for in accordance with that written quotation but will otherwise be subject to the Agreement.
3. CLIENT’S OBLIGATIONS
3.1 You agree to co-operate with Contrast Technologies and provide Contrast Technologies with full and accurate information so that Contrast Technologies can properly provide the Services.
3.2 Contrast Technologies may disclose in its marketing and promotional materials, which include but are not limited to the Contrast Technologies website, press releases and media stories, your name, logo and contact details as a reference to an existing client of Contrast Technologies. Results generated by Contrast Technologies for You may only be disclosed with your agreement.
4. OWNERSHIP
4.1 All materials, including all copyrights, trademarks, logos, and other identifying marks (collectively Materials) of each Party are and shall remain the exclusive property of that Party, and except as otherwise specifically set forth in the Agreement, no license to use such Materials is granted pursuant to the Agreement.
4.2 All Materials are proprietary and may not be reproduced, duplicated, or disseminated for any purpose. All non-third-party software installed or provided by one of the Parties for the other Party’s use is proprietary software and the exclusive property of installing Party.
4.3 You must not in whole or in part copy, alter, modify, reproduce, reverse assemble, reverse, compile or create derivative works or permit any other person to do the same in or in respect of Contrast Technologies’ Intellectual Property without prior written agreement from Contrast Technologies. For the avoidance of doubt, You agrees to waive your rights under section 21 of the Copyright Act 1994.
4.4 You shall both during and after the Term of the Agreement do all such acts and things and sign all such documents as Contrast Technologies may reasonably request to secure Contrast Technologies’ ownership or rights to the inventions, discoveries, designs, or copyright works or other Intellectual Property referred to in clauses 5.1 to 5.8.
4.5 You must promptly notify Contrast Technologies of any actual, threatened or suspected infringement of Contrast Technologies’ Intellectual Property and of any claim by any third party that the provision of the Services infringes any Intellectual Property of any other person. You must (at the expense of Contrast Technologies) do all things that Contrast Technologies may reasonably require to assist them in pursuing or defending any proceedings in relation to any such infringement or claim.
5. INTELLECTUAL PROPERTY
5.1 All intellectual property shall remain the property of Contrast Technologies or any Supplier entitled to it, and neither Contrast Technologies nor its Suppliers transfer any right, title, or interest in the intellectual property to You.
5.2 You must not use any words or marks similar to trademarks which are the property of Contrast Technologies or its Suppliers, except to the extent authorised by Contrast Technologies in writing.
5.3 You agree to dispatch the Products only under the trademarks under which they are supplied by Contrast Technologies, and under no circumstances shall You apply any of the trademarks to any product which is not a genuine branded product supplied to You by Contrast Technologies.
5.4 You must not cause or permit anything which may interfere with, damage, or endanger the trademarks or other intellectual property rights of Contrast Technologies or its Suppliers, or assist or allow others to do so.
5.5 You must advise Contrast Technologies immediately when You become aware of any unauthorised use or attempted use by any person of the trademarks or other intellectual property rights of Contrast Technologies or its Suppliers.
5.6 If your account with Contrast Technologies is terminated, You must immediately discontinue use of any of the trademarks which are the property of Contrast Technologies
5.7 You agree to ensure that all Confidential Information given by Contrast Technologies to You is made available to your employees only on the basis that those employees at all times maintain strict confidentiality.
5.8 This clause shall survive the termination of the Agreement.
6. CONTRAST TEHCNOLOGIES WARRANTIES
6.1 Contrast Technologies warrants the following:
(a) Contrast Technologies is the owner or licensee of all copyrights, licenses, trademarks, patents, and designs used to provide You with the Services.
(b) Contrast Technologies has the appropriate support facilities to provide You with the Services.
(c) Contrast Technologies has the personnel who are trained and qualified to the appropriate level to provide You with the Services.
6.2 Contrast Technologies will store all information that relates to your business dealings in a safe and secure place and will use its best endeavours to prevent anyone other than those performing the Services having access to that information; and Contrast Technologies Services will be and will perform substantially in accordance with your requirements as specified in the Proposal and as otherwise specified in these Terms and Conditions.
6.3 Except as provided in these Terms and Conditions or in any other express warranty given to You, no other warranty or condition will be implied against Contrast Technologies by any statute, at common law or otherwise. Contrast Technologies will not be bound by any representation, express condition, or warranty unless it is in writing and is signed on Contrast Technologies’ behalf.
7. PRICING AND PAYMENT
7.1 The pricing agreement services are described in Schedule A attached to the Terms of Trade (Pricing).
7.2 Unless we have agreed in writing to extend credit to You, You must pay in cash or by credit card before supply. We have sole discretion to determine the amount of credit we will extend to You at any time.
7.3 Where we have agreed in writing to extend credit to You, you must pay in full within fourteen (14) days of supply, or (only if we have agreed in writing) by the 20th of the month following the dispatch of an invoice. Your payment is made only when funds have fully cleared through the banking system into our bank account.
7.4 Where accounts have not been paid in full in accordance with any credit terms, we have extended to You we reserve the right to cancel any discounts, including any agreement for discounted labour rates, and to instead charge You at our normal labour rate for all past and future Products supplied to You.
7.5 Accounts with no transactional history after a period of 6 months will revert to our normal labour rate.
7.6 You agree to pay for the Products in full without deduction or set-off and to pay goods and services tax and any other government duties, levies or taxes in respect of the Products.
7.7 Between the due date and the date payment is received in full we are entitled to charge You either: interest on the unpaid overdue balance at the rate of 4% per annum above the current unapproved overdraft rate charged by Contrast Technologies bank, or a monthly $20 administration fee, whichever is greater. Such overdue charges will compound monthly on the unpaid balance owing on the first day of each month. We may also charge You debt collection costs (including legal costs on a solicitor-client basis) and suspend delivery of further Products until all amounts owing to us are paid in full.
7.8 Notwithstanding any other clauses in these terms of trade, all payments shall immediately become due to us if You refuse to accept delivery of any Products, if we reasonably believe that the information which You have given us in your application for credit is incorrect or no longer correct, if without our consent You sell or otherwise dispose of any Products which have not been paid for, if You become insolvent, commit any act of bankruptcy, if a receiver, liquidator or statutory manager is appointed over any of your assets, if you make or attempt to make an arrangement with creditors, or if You fail to comply with any of the provisions of the clauses under clause 7.
8. PRICING AND PAYMENT.
8.1 You agree to give Contrast Technologies permission to conduct a credit check on You. Contrast Technologies reserves the right to refuse to provide services to You at its discretion.
8.2 You agree, for orders cancelled by You, to pay any applicable restocking fee and/or freight charges.
9. RISK AND DELIVERY
9.1 You are responsible for insurance and risk in the Products from the time they are received by a carrier for delivery to You or collected by You or your agent. You agree to pay all delivery costs.
9.2 All claims for shortage or damage during delivery must be made to the carrier within 7 days of the date of delivery. Where goods appear to be damaged or missing you must contact the carrier and us immediately.
9.3 We will make every effort to ensure delivery of Products, or performance of services, is on time, but will not be liable to You for any loss or damage arising in any way from any delay in delivery or performance. Delay in delivery or performance does not entitle You to cancel any order.
9.4 Where You ask us to deliver Products directly to another person's address, any liability for the Products passes to You once the Products are left at that address and that person takes possession of the Products for You as your agent, but You are still directly responsible to us under these terms of trade.
10. PROPERTY AND TITLE IN GOODS
10.1 With the exception of Software, which is subject to licence, ownership in Products whether in their original form or incorporated in or attached to another Product will not pass to You but will remain with us until we receive payment in full of the purchase price of the Products and all other amounts that You owe to us for any reason.
10.2 Until property passes to You, You shall hold any Products in trust as fiduciary bailee for us and/or the Software licensor and store them in a manner to enable them to be identified and cross referenced to particular invoices.
10.3 Where Contrast Technologies reasonably believes You are or will be in breach of any part of these terms of trade, Contrast Technologies or its agent may without notice enter any premises under your control to remove any Products which are the property of Contrast Technologies whether or not those Products are installed in or attached to any other goods, using such force as is necessary, and without prejudice to any other of Contrast Technologies rights. You indemnify Contrast Technologies against all costs and claims in respect of its exercise of rights under this clause 10.3.
11. SECURITY INTERESTS
11.1 You agree that You will on request provide us all information and do all acts necessary, including signing a general security agreement, for us to register a financing statement or purchase money security interest over the Products or their proceeds, and that You will advise us immediately in writing of any changes to that information. You waive all rights to receive a copy of any verification statement or financing statement.
11.2 You agree that You will supply us, within 2 business days of our written request, with copies of all security interests registered over your personal property, and You authorise us as your agent to request information from any secured party relating to any security interest which is held in any personal property which is or has been in your possession or control.
11.3 You agree that we may require You to pay all reasonable costs, including legal costs on a solicitor-client basis, associated with the discharge or amendment of any financing statement registered by us, whether or not the change was initiated by You.
11.4 If we repossess goods under this agreement, we may retain those goods or dispose of them without notice or statement of account to You or any other person, and, after deducting reasonable costs of sale, we may credit any surplus by way of set-off against any sums owing to us. We will not be obliged to re-supply any repossessed inventory.
11.5 You authorise third parties to provide all personal information about You or associated entities.
12. NETWORK SUPPORT AGREEMENTS
12.1 For a monthly network support agreement described in Schedule B as attached to the Terms of Trade, You agree that:
(a) The Agreement shall be effective on an open term basis, commencing on the date the Agreement is executed by You and accepted and executed by Contrast Technologies (Service Start Date).
(b) If You have agreed to a fixed term on a quote for monthly network support as described in Schedule B, You agree to be bound to that fixed term quote.
(i) If You wish to terminate the fixed term quote prior to the end date of the fixed term quote as described in Schedule A, You agree to pay for the remainder of the term unless agreed to otherwise by Contrast Technologies in writing.
(c) Contrast Technologies will invoice the Pricing to You on a monthly basis.
(d) You agree that Contrast Technologies may invoice You from the Service Start Date irrespective of whether You have used the Services.
(e) You agree to pay Contrast Technologies by way of automatic payment.
(f) Payment for all Services are due in advance and on the first (1st) day of the following month (Payment Date).
(g) You agree that Contrast Technologies may increase the pricing for network support agreements based on inflation rates and without notice.
(h) Annual price reviews described in Schedule A for network support agreements will be subject to the Reserve Bank of New Zealand (RBNZ) Consumer Price Index (CPI) changes as contained in the RBNZ Inflation calculator. Source: https://www.rbnz.govt.nz/monetary-policy/inflation-calculator.
(i) Contrast Technologies may inform You in writing of these changes one (1) month before the adjustment.
(j) Either party may terminate the Agreement at any time by providing at least ninety (90) days (Notice Period) prior written notice to the other party. You acknowledge and agree that You will remain responsible to pay monthly Pricing for Agreement Services during the Notice Period.
(k) You agree that any credit will not be refunded and will be applied towards the following month’s invoice, unless agreed to otherwise in writing by Contrast Technologies.
Single Supply Quote
12.2 For a single supply quote described in Schedule A as attached to the Terms of Trade, You agree that:
(a) Contrast Technologies reserves the right to cancel orders arising from an error in pricing or any other errors.
(b) Any equipment purchased by You from Contrast is subject to the Warranties given by the manufacturer in respect of the equipment (if any apply at the time).
Overdue Payments
12.3 In the event an invoice has not been paid in full, Contrast Technologies reserves the right to limit credit and/or withdraw monthly credit facility at any time while any overdue amounts owing remain unpaid.
12.4 Any and all debt collection costs (including those on a full solicitor/client basis) incurred by Contrast Technologies for the collection of the unpaid invoice(s) shall be paid in full and without deduction by You.
12.5 If You fail to pay the amount required by the invoice due date, it may result in your being liable to pay interest at a rate of two percent (2%) per month in respect of the overdue amount plus GST until the payment is received in full by Contrast Technologies.
12.6 If full payment is overdue by more than fourteen (14) days, Contrast Technologies shall be entitled, in its sole discretion, to suspend performance of any and all of its obligations under the Agreement, until payment is made in full. For the avoidance of doubt, where Contrast Technologies suspends performance of any or all of its obligations under the Agreement, this does not discharge You from any of its obligations under the Agreement, including but not limited to the your obligations to pay all due and/or overdue invoices to Contrast Technologies.
12.7 Contrast Technologies reserves the right to limit credit and/or withdraw monthly credit facilities at any time while any overdue amounts from You remain unpaid.
13. TERMINATION FOR DEFAULT
13.1 The Agreement may be terminated by either Party upon default by the other party, (but not limited to) failure to perform services and failure to pay for services as provided in the Agreement.
13.2 Written notice detailing the default is required to be provided to the defaulting Party. Termination may occur if the fault is not corrected within twenty (20) working days after receipt of such notice.
13.3 Any intellectual property, management and monitoring systems developed and implemented by Contrast Technologies may be required to be removed at the termination of the Agreement, without detriment however to the ability of another provider to manage and support the network.
14. HIRING OF CONTRAST TECHNOLOGIES’ EMPLOYEES
14.1 You agree not to interfere with Contrast Technologies’ contractual relationships with its employees.
14.2 Unless You have obtained prior written consent from Contrast Technologies, You agree that You will not hire or seek to employ any employee of Contrast Technologies employed to perform the Services or other services similar to the Services for any customer of Contrast Technologies.
14.3 You agree not to hire or engage, directly or indirectly, any person who, at any time during the twelve (12) months immediately preceding such hiring or engagement, was an employee of Contrast Technologies, unless You have obtained prior written consent from Contrast Technologies.
14.4 You agree that contravention of this clause 14, Contrast Technologies employees shall be entitled to recover from You half (1/2) the relevant employees’ annual salary with Contrast Technologies, in addition to any other rights and remedies Contrast Technologies may have against You (if any).
15. COUNTERPART AND ELECTRONIC EXECUTION
15.1 The Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. The Parties acknowledge that Agreement may be executed by an exchange of facsimile or electronic copies and execution of this Settlement Agreement by that means constitutes valid and sufficient execution.
15.2 You agree that any electronic signatures authorised by You or Contrast Technologies is considered to be full substitute for an original signature and allows Contrast Technologies to accept your order online.
16. DISPUTE RESOLUTION.
16.1 A Party to the Agreement wishing to invoke these dispute resolution procedures must give written notice to the other Party specifying the nature of the dispute. The Parties agree that if any dispute arises pursuant to the Agreement or these terms then they will first attempt to resolve that dispute by meeting and discussing it in good faith within fourteen (14) days-notice of a dispute having arisen.
16.2 If the discussions referred to above do not resolve the dispute within fourteen (14) Working Days, then either Contrast Technologies or You may (by notice to the other) require that the dispute be submitted for mediation. Mediation may be:
(a) a formal mediation through a professional mediator (unless agreed otherwise, using the services of a mediator nominated by the President of the Arbitrators and Mediators Institute of New Zealand Inc);
(b) an informal mediation through an agreed third party (e.g. an industry representative).
16.3 Neither Contrast Technologies nor You may issue legal proceedings against the other (other than for urgent interlocutory relief) relating to any dispute without first taking all reasonable steps to comply with clauses 16.1 and 16.2.
16.4 If no agreement has been reached in mediation within twenty (20) Working Days of the referral to mediation, or within such further time as the parties may agree, then either party may refer the dispute to arbitration. The arbitration will be by a single arbitrator and in accordance with the Arbitration Act 1996.
16.5 Nothing in these dispute resolution provisions limits any right the parties may have to bring a claim before the District Court or the High Court or the Disputes Tribunal.
16.6 If any account is in dispute, the undisputed portion of the account shall be payable by You. Payment of the disputed portion may be withheld provided it is brought to the attention of Contrast Technologies as soon as it is discovered.
17. WAIVER
17.1 Failure or neglect by either party to enforce at any time of the provisions hereof shall not be construed nor shall be deemed to be waiver of that party’s rights hereunder nor in any way affect the validity of the whole of any part of the Agreement nor prejudice the party’s rights to take subsequent action.
18. WARRANTIES
18.1 Goods are subject to the manufacturers’ warranties only. We will pass on the benefit of those warranties to You, without being directly liable to You under any warranty.
18.2 Where goods are subject to a return to base warranty, You are responsible for returning them to us or the manufacturer (as provided by the warranty) and You may be responsible for additional costs including (but not limited to) freight.
18.3 If You require us to replace the goods under manufacturers’ warranties, we will charge You at our standard service rate per hour plus relevant travel time incurred.
18.4 Any warranty may be voided by damage to or misuse of the system, problems caused by the use or misuse of software, negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorised repairs, modifications, or the addition of incompatible hardware.
19. NOTICES
19.1 Any notice required or authorised by the Agreement will be in writing and will be sent to the address of the recipient specified at the head of the Agreement, or such other address as may be notified in accordance with this clause. Notices may be delivered by hand, prepaid recorded mail, facsimile, or e-mail transmission, and will be deemed to have been received, if by hand, upon delivery, if by mail, forty-eight (48) hours after sending, and if by facsimile or e-mail transmission, two (2) hours after sending (provided such mail, facsimile or e-mail is not returned undelivered).
20. FORCE MAJEURE
20.1 Except for payment obligations, the Parties shall not be responsible for failure to render any obligation due to causes beyond its reasonable control, including, but not limited to, work stoppages, fires, civil disobedience, riots, rebellions, floods, war, acts of terrorism, pandemics, delays in transportation, accident, failure of Client to provide a suitable operating environment for Contrast Technologies, hardware malfunctions caused by defects in software or otherwise, failure of Client to allow Contrast Technologies access to its computer system, acts of God and other similar occurrences. The obligations and rights of the parties shall be extended on a day to-day basis for the duration of excusable delay.
21. ENTIRE AGREEMENT.
21.1 The Agreement contains all of the terms, representations and warranties made between the Parties and supersedes all prior discussions and agreements relating to the Services.
22. LIMITATION OF LIABILITY
22.1 You acknowledge that because You are acquiring the Products for business purposes, the provisions of the Consumer Guarantees Act shall not apply to any supply of Products to You, and the conditions, warranties and guarantees set out in the Contract and Commercial Law Act 2017 or implied by common law will not apply and are excluded from these terms of trade.
22.2 Contrast Technologies’ maximum liability to You in any case shall be limited to the value of any faulty Products supplied.
22.3 Contrast Technologies and its employees, contractors and agents, any manufacturers of the Products and any licensors of Software or Suppliers, will not be liable to You for loss or damage of any kind however that loss or damage is caused or arises. This exclusion of liability includes, but is not limited to, costs (including costs of returning Products to Contrast Technologies or to any manufacturer or licensor), consequential loss, loss of profits and damage caused by or arising from delays in manufacturing or delivery, faulty or delayed installation, unreasonable use, negligence (including a failure to do something which should have been done or to prevent something from happening), faulty specifications and design, and faulty materials, components, manufacture, compilation, or assembly of the Products.
22.4 We will not be liable to You for any losses caused by events beyond our reasonable control. We will not be required to settle a strike or lockout or other industrial disturbance against our wishes in order to benefit from this clause.
22.5 Contrast Technologies’ liability to You whether for breach of these terms, negligence or other breach of duty will in all cases be limited to a maximum amount equivalent to the relevant setup fee or month’s fee actually paid by You to Contrast Technologies.
22.6 Contrast Technologies’ liability to You does not include any loss or delay in performance of Contrast Technologies obligations under the Agreement because of circumstances beyond the reasonable control of Contrast Technologies.
22.7 Where applicable and if You are in trade, You agree that no proceedings may be brought to Contrast Technologies for an order under section 43 of the Fair Trading Act 1986 in relation to any alleged contravention of sections 9, 12A, 13, or 14(1) of the Fair Trading Act 1986.
23. GENERAL
23.1 The terms of the Agreement will change from time to time, and You accept that, by trading with us, an updated Terms of Trade will be hosted on our website at https://contrast.nz/legal/terms-and-conditions/.
23.2 All prices are exclusive of GST and Freight.
23.3 You agree that a copy of the Agreement will be sent to your nominated email address for service and safe receipt of it is deemed the day of delivery.
23.4 Contrast Technologies reserves the right to change these terms and conditions of trade from time to time and without written notice to You.
23.5 If Contrast Technologies fails to enforce any terms or to exercise its rights under these terms at any time, Contrast Technologies has not waived those rights.
23.6 No variation or representation outside of these terms is valid or binding unless agreed in writing.
23.7 If any provision of these terms is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the intent of the parties shown by these terms.
23.8 The terms are governed by the laws of New Zealand and any dispute under them shall be subject to the exclusive jurisdiction of the Courts of New Zealand.