1. TERMS OF BUSINESS
- These terms and conditions apply whenever CommArc (“we”, “us” and “our”) provide the Services to the Client (“you” “your”).
- The Appendix to this Schedule 5 applies in relation to your use of Microsoft Software (as defined in the Appendix).
2. OUR GENERAL STANDARDS
- We want to make it easy for you to do business with us. We are committed to:
- Providing a high level of responsive service to you.
- Putting you in touch with the right person to answer your enquiries.
- Responding to your needs quickly and efficiently.
- Please tell us if you have any complaint about our Services. Our aim is to resolve any complaints as soon as possible.
3. OUR RESPONSIBILITIES TO YOU
- Whenever we provide the Services to you, we will:
- Provide the Services with a level of efficiency, quality, care and skill expected of a provider who meets or exceeds all generally acknowledged good practice standards in our industry internationally at the time of supply (“Good Industry Practice”).
- Make sure the Services we provide are performed in the manner we have stated (which has been previously agreed with you) or as you have asked us to perform (and which has been agreed to by us).
- Provide the Services within an agreed time period, or if no time period is agreed, within a reasonable time frame.
- Endeavour to provide a professional, responsive service and act on your behalf when dealing with other IT vendors and suppliers, as and when required by you, to the best of our abilities.
- Manage any problem caused by us and use reasonable endeavours to ensure that the appropriate parties who provide us services rectify that problem. If the party is not performing, we will endeavour to find someone else who can provide a better service.
- Answer any questions you may have in relation to the provisioning of the Services or your future requirements relating to the Services. If these are outside of our expertise we will find someone who can advise you.
- Ensure that you are paying competitive market rates for all of your Services and, if appropriate, equipment by using our knowledge and industry position.
4. YOUR RESPONSIBILITIES TO US
- Wherever we provide the Services for you, it is your responsibility to:
- Notify us when a new user requires access to the Services.
- Use the Services only for their purpose and in accordance with the terms of this Agreement and follow all reasonable directions we provide about the use of our Services.
- Have the relevant hardware, software and telecommunications connectivity needed to access the systems we make available to you through the Services from your premises and ensure that they are compatible with those systems and continue to function correctly.
- Make sure all information you provide us is correct and complete at the time it was given and for the purpose it was given.
- Inform us if you have any queries regarding our Services or products and contact us if there are any problems regarding the Services so the issue can be discussed and rectified.
- Pay all of our valid tax invoices within the required time frame subject to and in accordance with this Agreement.
- Allow us to act on your behalf when required and as directed by you when dealing with other IT vendors and suppliers.
- Provide us with a single point of contact within your organisation.
- Subject to clauses 8.c and 17 if you breach any of the obligations in paragraph (a) above, our only remedy will be for damages and we will not be entitled to terminate this agreement solely for a breach of those obligations.
- You must not use the cloud services for any unlawful, offensive, obscene or fraudulent purpose.
5. COMMERCIAL CONFIDENTIALITY
- CommArc will keep confidential any files and data stored by it on your behalf in accordance with Good Industry Practice. All staff sign a confidentially clause as part of their employment contract and contractors sign a confidentiality clause as part of their engagement.
- CommArc is held in a position of trust by our clients. As part of the work we are asked to perform we often require administrative access to the servers where confidential and private information is kept. Our clients expect a level of professionalism from CommArc that would preclude us from viewing confidential files when not required to do so to perform our duties. Our staff understand this expectation and adhere to it.
- We will only release information regarding your business to other parties when it specifically relates to a Service you have asked us to provide or as required by law. We will always obtain your prior written consent to any such releases or, in the case of a legal requirement to release, we will provide you with prior notification of such release (unless prohibited by law from doing so).
- You agree to keep confidential the terms of this Agreement and any other information relating to CommArc or which CommArc provides to you that could reasonably be expected to be kept confidential.
- These obligations of confidentiality do not apply where disclosure is required by law or to information of a party that:
- is or becomes general public knowledge through no fault of the other party;
- the other party is able to conclusively prove was known to it prior to the date of receipt of such information from the party that disclosed it (other than by reason of it having been acquired directly or indirectly from a third party under an obligation of confidence to any person in respect of that information);
- was or is independently developed by the other party without reference to any information acquired or received by the other party from the party that disclosed it or directly or indirectly from any third party under an obligation of confidence to any person in respect of that information; or
- the parties agree in writing is not to be treated as confidential for the purpose of this Agreement.
- While we use reasonable commercial endeavours to ensure the security of your data, we do not warrant that all unauthorised access will be prevented.
- CommArc confirms that:
- CommArc’s own firewalls run in a configuration which only allows business traffic inbound and outbound (this is the standard which we also apply to our client’s firewalls). It requires administrator access to the firewall to make any changes to the configuration, and these details are not commonly known to staff.
- Our firewall is monitored for intrusion attempts, and is patched regularly when security updates are issued by the vendor. CommArc is not obliged (under this Agreement) to install all security updates issued by a vendor.
- All CommArc PCs and laptops run anti-virus software which is updated from a central server as updates are issued by the vendor. Real-time scanning for viruses and malware occurs by default. Internal anti-virus status and alerts are monitored daily.
- All CommArc PCs and laptops are updated with security patches from a central server as updates are issued by the vendor and checked by our security team. Internal security patch status and alerts are monitored daily.
- Our premises are alarmed (monitored by a security company) and require security key fob access outside of normal business hours (our data centre requires security key fob access at all times).
7. INFORMATION AND DATA
- You must ensure that you hold any necessary consent to input the personal information of any person into our cloud services. You must not input data and information into the cloud services that by law are not permitted to be input into our cloud services.
- You grant us the right to access and store data and information input into the cloud services in order for us to perform our obligations under this Agreement.
- For the avoidance of doubt, we have no rights over your data or information that is hosted by us as part of the Services.
- We may collect data and information provided to us through your use of the Services, including such information as relates to user activity, to enable your use of the Services or otherwise improve the Services or user experience. You will ensure that your users are aware of such collection, the purpose of the collection, that we hold that information, and where the information is the personal information of that user that they have the right to access and request correction of it under the Privacy Act 1993. We will comply with the Privacy Act in relation to any data and information that is subject to that Act.
8. DURATION AND TERMINATION OF THIS AGREEMENT
- The Agreement will continue for the Term, subject to early termination under this clause.
- You may terminate this Agreement if we commit a material breach of any of our obligations under this Agreement and we have failed to remedy that material breach within 15 business days, or such longer time as agreed in writing with you, from the date of your notice notifying us of the breach.
- We may terminate this Agreement if you commit a breach of your payment obligations under clause 16, or there is a material breach of any of your other obligations under this Agreement and, in either case you have failed to remedy that breach within 15 business days, or such longer time as agreed in writing with us, from the date of our notice notifying you of the breach.
- We may terminate this Agreement on written notice to you (with immediate effect) if we consider (acting reasonably) that the relationship between the parties has become such that the parties are no longer able to work together in a commercially reasonable manner or that the continuation of the relationship between the parties would affect our ability to perform the Services in accordance with this Agreement.
- Each of us may also terminate this Agreement if the other becomes insolvent or unable to pay its debts as they fall due.
- If the Agreement is not extended the Agreement will terminate at the expiry of its duration.
- If there is a dispute regarding the duration and termination of this Agreement then this will be resolved by each party’s CEO or nominated representative. If a resolution cannot be agreed upon then mediation as set out under clause 23 can be sought.
- All outstanding amounts become immediately due on termination of this Agreement.
- Subject to the engagement of handover services in accordance with clause 9.b, on termination or expiry of this Agreement you must cease using or accessing the Services.
- On termination or expiry of this Agreement you must immediately return any CommArc confidential information that has been provided to you under this Agreement.
- Termination or expiry of this Agreement shall not:
- relieve either party from any right, liability or claim that has accrued before the date of termination; or
- affect the provisions of this Agreement which expressly, or by their nature, survive termination or expiry.
- Upon termination or expiry of this Agreement CommArc agrees to deliver all client data as it relates to the Agreement to you in the format reasonably required by you.
- Prior to the termination or expiry of this Agreement you may request, and we may agree, that we also provide further services from the date of termination or expiry to assist your transition to a new service provider. Such handover services shall not exceed a six month period. You may also request us to provide the Services as required while the handover services are being undertaken. We may refuse to provide any handover services or Services during that period if you have any unpaid invoices.
- If we undertake such services then those services shall be charged at our standard hourly rate for customers generally, together with any costs or expenses incurred by us in the provision of those services.
- We may modify the way in which the Services are provided, so long as such modification does not have a material impact on the Services.
- Notwithstanding paragraph (a) above, we reserve the right to make any change to the Services if necessary to protect the security of our systems. We will discuss options with you if the change has a material impact on the Services.
- We also reserve the right to move the physical location of the hosting Services at any time. Except in the case of an emergency, we will give you three months’ notice in writing of our intention to move the location of the future hosted Services.
11. ASSIGNMENT AND THIRD PARTY CONTRACTING
- We may assign or otherwise have third parties contracted to provide the Services under this Agreement. In such an event, we will give you two months written notice of the intention to do so.
- Additional services or projects may be requested under this Agreement. We may provide quotations, scopes, estimates or other documentation in relation to such requests.
- Subject to external factors such as exchange rate fluctuations, product deletions and stock availability, it is our intention that all quotations, scopes, estimates and relevant documentation will remain valid for 30 days. We will notify you of any shorter validity period when we provide the document. When an estimate, quotation, scope, or order is accepted by you in writing, it will become binding.
- If we undertake at your request, additional services that are not subject to any stated or agreed pricing, then those services shall be at charges based upon our normal charges for the provision of those additional services, together with additional costs or expenses incurred by us in the provision of those additional services.
13. FORCE MAJEURE
- We are not liable for failure to perform our obligations if such failure is caused by conditions beyond our control, including but not limited to acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), wars, insurrections and/or any other cause beyond our reasonable control, including for interruption or failure of electricity or communication services.
- You are not entitled to terminate our services in such circumstances.
- We warrant that we will provide the Services in accordance with Good Industry Practice.
- We do not warrant that the use of the Services will be uninterrupted or error free. You acknowledge that the Services rely on Internet connectivity and other third party communication services. We will not be liable for any failure due to any unavailability of an Internet connection or such third party communication services.
- All warranties and undertakings given by us under this Agreement are given subject to any matter, circumstance or information disclosed by us to you and any matter expressly provided for in this Agreement. Except as specified in this Agreement, we exclude all warranties (including any warranties implied by law) in respect of any services or equipment provided to you under these terms to the fullest extent permitted by law.
- The parties acknowledge that all Services provided pursuant to this Agreement are being acquired for the purpose of your business, and, accordingly, the provisions of the New Zealand Consumer Guarantees Act 1993 shall not apply in relation to the supply of such Services.
- Notwithstanding any other term of this Agreement:
- Our liability to you in respect of all claims arising under or in connection with this Agreement (including directly or indirectly from any breach by us of this Agreement or from any negligence or other act or omission of us or any of our employees, officers, contractors or agents) shall be limited to a maximum aggregate amount equal to the total fees paid by you for the affected Services for the most recent calendar month prior to the claim being notified. Without limiting the application of this clause, it is acknowledged and agreed by you that a claim may only be made if there have been two or more Priority One outages (being outages that have a critical business impact on your business) within the same 30 day period which have not been resolved within a 4 hour period from when they are first notified.
- We shall not be liable to you for any loss of profits or any consequential, indirect or special loss or damages suffered by you, arising directly or indirectly from any breach by us of this Agreement or from any other negligent or other act or omission of us or any of our employees, officers, contractors or agents.
16. OUR FEES
- Subject to the terms of this Agreement, you will pay us the amounts for the Services as set out in Schedule 4.
- Additional fees may be payable for additional services or amendments to the specifications as agreed from time to time. The terms of this Agreement will apply to such additional services or amended specifications.
- If applicable, GST and any other applicable taxes will be charged in addition to all amounts owing. Invoices shall be submitted monthly unless milestones have otherwise been agreed. Payment of the invoiced amount is due within 14 days of your receipt of a valid tax invoice. We reserve the right to charge interest at a rate that is 5% above the overdraft rate provided to us by our bankers on accounts that are overdue by more than 14 days.
- If there is a dispute in relation to all or any portion of any of our invoices, you may only withhold payment of the disputed amount. You should advise us of the dispute and pay to us the undisputed amount when it becomes due and payable.
- We also reserve the right to amend the amounts set out in Schedule 4 or any other amounts that have been agreed with you in order to pass on any increase in third party costs we incur in providing the Services. In the case of such amendment we will provide not less than thirty (30) days written notice of any such increase.
17. OUR RIGHT TO SUSPEND SERVICES
- If you do not pay our undisputed valid tax invoices or meet any material responsibilities you have with us (including those responsibilities specified under clause 4), we may suspend or restrict any Service provided we have given you prior written notice of our intention to suspend or restrict the Services. We will provide you with a reasonable timeframe to reach a resolution, such timeframe to be specified in our notice, before suspending or restricting Services. Unless we agree otherwise, all amounts payable for the Services during any period of suspension or restriction will continue to accrue despite the suspension or restriction. The suspension or restriction will be lifted when you have addressed the issue giving rise to the suspension or restriction to our satisfaction (including us being satisfied that the issue will not recur).
- If there is a bona fide dispute regarding suspension or restriction of Services, or if there is a bone fide dispute regarding all or any portion of our invoices, then this will be resolved by each party’s CEO or nominated representative. If a resolution cannot be agreed upon then mediation as set out under clause 23 can be sought. We will keep providing the Services to you in accordance with this Agreement until a dispute with you is resolved, unless you request us, in writing, not to.
- You may request us to undertake any project with your organisation.
- Before we commence any project we will either create a design document or provide you with a written estimate. These documents will provide the technical and logistical details for your project and set out the basis on which you will be charged. We may agree specific project charges for the project with you. We will work in accordance with these documents once you have agreed to them in writing. You must comply with any of your obligations under those documents.
- If we undertake at your request, services that are not included in the applicable design document or estimate, then those services shall be charged in addition to any written estimate or agreed project charges, with the charges based upon our normal charges for the provision of those services, together with additional costs or expenses incurred by us in the provision of those services.
- We may revise the charges for any project if any unforeseen event occurs to take into account the consequences of that event for the project.
- We will bill you in stages throughout a project or as otherwise agreed. Payment is due at the completion of each stage. If payment is not received at the completion of a stage subject to and in accordance with this Agreement, we will reserve the right to suspend that project until payment is received, provided we have given you not less than five days prior written notice of our intention to suspend the project.
- Stages are normally specified in our written estimate. If stages have not been specified we will bill you either monthly or at the completion of the project (as agreed or otherwise specified in the relevant schedule).
- Clause 16 applies in all other respects to amounts due in respect of a project.
19. SOFTWARE LICENSING AND VIRUSES
- It is outside of our ethical charter to knowingly recommend illegal software to you or to recommend licence levels lower than those actually required.
- It is your responsibility to ensure that all software that you purchase or obtain from us (or on our recommendation) is both legally obtained and virus free. We will not be held responsible for software piracy or licensing violations on your system.
20. INTELLECTUAL PROPERTY
- You acknowledge and agree that we, or the people we licence such products or services from, own all the intellectual property rights in or associated with the Services and any development, improvement, modification, variation or addition to those intellectual property rights.
- Nothing in this Agreement will transfer to you any intellectual property rights, other than the right to use the Services in accordance with the terms of this Agreement.
- Neither you, or your users, or any affiliates shall copy, reproduce, alter, adapt, modify, decompile, disassemble, reverse engineer, make error corrections for, create derivative works of, or attempt to obtain the source code for any of the software or services provided by us under this Agreement.
21. HEALTH AND SAFETY
- You confirm you have and will maintain effective policies and procedures in place to ensure compliance with the Health and Safety at Work Act 2015.
- When we are on your premises, you must provide to us all information regarding your health and safety practices relevant to us being on site and otherwise consult, co-operate and coordinate with us in relation to health and safety matters.
- Neither party shall (and shall procure that no related entity shall) directly or indirectly approach or solicit for employment, engage or contract any person who is employed or contracted by the other party (or any related entity of it):
- during the term of this Agreement; or
- for a period of six (6) months following the expiry or termination of this Agreement, without the prior written consent of the other party.
- This clause shall not apply in the event a person employed or contracted by a party should independently approach the other party for the purpose of that person’s proposed employment, engagement or contracting by the other party, including in response to an advertised position.
- If any dispute arises as to the interpretation of this Agreement or any matter arising out of or in connection with this Agreement (“Dispute”) then either party shall by notice in writing served on the other party inform the other party of the details of the Dispute. Both parties undertake to use their reasonable endeavours to resolve the Dispute.
- If a Dispute is not resolved by agreement within 20 Business Days of notification, either party may refer the Dispute to mediation.
- Upon a Dispute being referred to mediation, the parties will agree on a suitable person to act as mediator. If the parties fail to agree on the identity of the mediator within 10 Business Days of the Dispute being referred to mediation, the mediator will be appointed by the President of the Arbitrators’ and Mediators’ Institute of New Zealand Inc, upon the application of any party.
- The mediation will be conducted in accordance with the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc in force at the time the Dispute is referred to mediation.
- If the Dispute is not resolved by mediation in accordance with the above provisions, the dispute resolution procedure will terminate and each of the parties will be entitled to pursue such legal remedies as it thinks fit.
- Nothing in this Agreement precludes a party from seeking urgent equitable relief from the Courts, or from seeking any summary judgement or undertaking any enforcement processes in the Courts in respect of undisputed matters.
- This Agreement may only be changed by a written variation signed by both Parties.
- If any term of this Agreement is illegal, invalid or unenforceable for any reason whatsoever such terms are deemed to be deleted from this Agreement. Such deletion will not render the remainder of this Agreement illegal, invalid or unenforceable on its terms.
26. NO WAIVER
- No delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence by one party in respect of any breach of the other party’s obligations under this Agreement is to operate as a waiver of, or prevent the subsequent enforcement of, that obligation.
- Any notice given pursuant to this Agreement will be sufficiently given if it is in writing and delivered or sent by prepaid post, courier or email to the other party at the address as shown below or as otherwise notified from time to time:
- CommArc’s address: 118 Wrights Road, Addington, Christchurch 8024
- The Client’s address: [QuoteToCustomer.AccountName], [QuoteToCustomer.AddressOne], [QuoteToCustomer.AddressTwo], [QuoteToCustomer.City]
28. GOVERNING LAW
- This Agreement is to be governed by, and construed in accordance with, the laws of New Zealand and each party agrees to submit to the non-exclusive jurisdiction of the Courts of New Zealand.
- In addition to the terms and conditions set out in this Agreement, the following terms shall apply to your use of all Microsoft software installed on CommArc’s equipment and which CommArc makes available to you in providing the Services (Microsoft Software). CommArc does not own the Microsoft Software and the use thereof is subject to certain rights and limitations of which CommArc must inform you. Your right to use the Microsoft Software is subject to the terms of this Agreement and to your understanding of, compliance with, and consent to the following terms and conditions of this Appendix.
- You acknowledge and agree that we may vary the terms and conditions of this Appendix at the request of Microsoft.
OWNERSHIP OF MICROSOFT SOFTWARE
- The Microsoft Software is licensed to CommArc from an affiliate of the Microsoft Corporation (collectively “Microsoft”). The Microsoft Software is protected by copyright and other intellectual property rights. The Microsoft Software and other software elements including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Microsoft Software are owned by Microsoft or its suppliers. You may not remove, modify or obscure any copyright trademark or other proprietary rights notices that are contained in or on the Microsoft Software. The Microsoft Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Microsoft Software does not transfer any ownership of the Microsoft Software or any intellectual property rights to you.
- You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Microsoft Softwareto any third party, and may not permit any third party to have access to and/or use the functionality of the Microsoft Softwareexcept for the sole purpose of accessing the functionality of the Microsoft Softwarein form made available through CommArc’s provision of the Services to you.
- Without prejudice to any other rights, CommArc may terminate your rights to use the Microsoft Softwareif you fail to comply with the terms and conditions of this Appendix. In the event of termination or cancellation of CommArc’s agreement with Microsoft under which the Microsoft Software is licensed, you must stop using and/or accessing the Microsoft Software.
NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT
- Microsoft disclaims, to the extent permitted by applicable law, all warranties and liability for damages by Microsoft or its suppliers for any damages and remedies whether direct, indirect or consequential, arising from the Services. Any warranties and liabilities in this Agreement are provided solely by CommArc and not by Microsoft, its affiliates or subsidiaries.
MICROSOFT SOFTWARE SUPPORT
- Any support services under this Agreement is provided to you by CommArc or a third party on CommArc’s behalf and is not provided by Microsoft, its suppliers, affiliates or subsidiaries.
NOT FAULT TOLERANT
- The Microsoft Software is not fault tolerant and is not guaranteed to be error free or to operate uninterrupted. You must not use the Microsoft Software in any application or situation where the Microsoft Software(s) failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).
LIABILITY FOR BREACH
- In addition to any liability you may have to CommArc, you agree that you will also be legally responsible directly to Microsoft for any breach of the terms and conditions of this Appendix.
- You permit CommArc to disclose any information collected through your use of the Microsoft Software and disclose such information to Microsoft, or otherwise disclose such information as Microsoft requests.
- You acknowledge that for the purposes of the Part 2, Subpart 1 of the Contract and Commercial Law Act 2017, the terms and conditions of this Appendix have been included for the benefit of Microsoft. Microsoft will be an intended third party beneficiary of this Agreement, with the right to enforce provisions of this Agreement and to verify your compliance.