Terms and Conditions
These Terms and Conditions apply with respect to all dealing between the Supplier and the Customer and replace any previous terms and conditions between the parties.
1. Definitions and Scope
1.1 In these Terms and Conditions:
a. Customer means the party receiving the Services and/or the party for whose benefit the Services are provided, and includes its/their successors and assigns.
b. Fee means the price of the Services as specified by the Supplier and includes any other charges agreed by the parties from time to time.
c. Services means the services agreed by the parties from time to time.
d. Supplier means Unboxed Operating System and includes its successors and assigns.
2.1 The Supplier shall perform the Services in accordance with these Terms and Conditions.
2.2 In providing the Services the Supplier shall exercise the degree of skill, care and diligence normally expected of a competent professional.
2.3 The Customer and the Supplier agree that where all, or any of, the Services are acquired for the purposes of a business the provisions of the Consumer Guarantees Act 1993 are excluded in relation to those Services.
2.4 The Customer shall provide to the Supplier, free of cost, as soon as practicable, all information, access and/or any other permissions reasonably required to perform the Services. In providing the aforementioned, the Customer shall identify any proprietary or other legal rights belonging to another person.
3.1 In consideration of the Supplier providing the Services the Customer shall pay the Supplier the Fee.
3.2 Unless otherwise agreed, the Supplier shall invoice the Customer for the Fee on a monthly basis.
3.3 The Supplier’s invoices will:
a. Identify the Services to which the Fee relates;
b. be in the form of a tax invoice for GST purposes.
3.4 Upon receipt of an invoice in accordance with the above, the Customer shall pay such invoice by no later than 7 days following the date of the invoice.
3.5 If any payment is not received by the due date the Supplier has the right to charge a late payment fee of $50.00 per month. In addition, all overdue amounts will accrue interest at a rate of 13.5% per annum calculated daily as from the due date for payment.
3.6 Payment of any amount owing to the Supplier shall be made free of any counterclaim, set-off, deduction or other claim whatsoever.
3.7 Where the Services have been requested or otherwise agreed to by an agent (or a person purporting to act as agent) on behalf of the Customer, the agent and Customer shall be jointly and severally liable for payment of the Fee.
4. Liability of Supplier
4.1 To the extent permitted by law, the Supplier shall not be liable to the Customer or any other person for any loss, damage, expense, injury or death sustained or incurred by the Customer or any other person whether caused negligently or in any other way resulting directly or indirectly out of the supply, performance or use of the Services.
4.2 To the extent permitted by law, in no event will the Supplier’s total liability for any claim related to, connected with or arising out of the provision of the Services exceed the total amount of the Fee paid to the Customer.
5. Intellectual Property
5.1 Each party will, where necessary in relation to the Supplier’s provision of the Services, grant that other party a licence, to use all or part of that party’s Intellectual Property where such Intellectual Property is reasonably required for proper enjoyment of the Services.
5.2 Each party (“indemnifier”) indemnifies the other party (and where Intellectual Property is jointly owned by the parties, proportionate to each party’s ownership) for all costs (including reasonable legal costs on a solicitor and client basis), losses and damages resulting from any claim or action brought against the other party and/or their related companies, employees, and service providers, where this may result from any claim that any third party’s Intellectual Property rights have been infringed as a result of any act or omission by the indemnifier under this Agreement.
5.3 Intellectual Property prepared or created by the Supplier in carrying out the Services (“New Intellectual Property”) shall be owned solely by the Supplier and the provisions of clause 5.1 shall apply.
6.1 Either party may cancel the provision of the Services for any reason on the giving to the other party written notice of 30 days.
6.2 The Supplier may cancel the Services with immediate effect if:
a. The Customer is in material breach of any of its obligations under these terms and conditions and fails to rectify that breach within 14 days of a notice in writing from the Supplier requiring it to do so;
b. The Customer has a petition presented, or an order made, or an effective resolution passed, or analogous proceedings taken for its bankruptcy, liquidation, dissolution or winding up (except for the purpose of solvent reconstruction, reorganisation or amalgamation);
c. The Customer has an encumbrancer, receiver, liquidator, trustee or similar officer take possession of, or be appointed with respect to all, or any part of its business, assets or undertaking;
d. The Customer ceases, or threatens to cease carrying on its business or makes an assignment for the benefit of creditors or entering into any general arrangements or composition with, or for the benefits of its creditors.
6.3 Upon cancellation of the Services in accordance with this clause 6, all Intellectual Property and New Intellectual Property shall be returned by the Customer to the Supplier and, for the avoidance of doubt, any licence for the Customer to use such property shall cease with immediate effect.
7. Relationship of Parties
7.1 The Supplier and the Customer agree that the relationship between them shall be that of independent contractors and that nothing in these Terms and Conditions constitutes any relationship of employer and employee, principal and agent or partnership between the parties, and neither party has any authority to represent the relationship as such.
8.1 The Customer indemnifies the Supplier, its officers, employees and agents (Indemnified Parties) against all claims, losses, damages, liability or expenses (including actual legal costs payable to legal representatives) suffered or incurred by the Indemnified Parties and arising directly or indirectly from or in connection with a breach or non-performance of any of the obligations or warranties of the Customer under these Terms and Conditions; any breach by the Customer of any representation express or implied made by the Customer to the Supplier or any third party in connection with these Terms and Conditions, any negligent or unlawful act or omission by Customer; or any claim by any person arising out of the provision of Services by the Supplier.
9. Dispute Resolution
9.1 If there is a dispute between the parties arising out of, or in connection with, these Terms and Conditions, the parties will endeavour, in good faith, to resolve the dispute by using informal dispute resolution techniques.
10.1 If the Supplier, in providing the Services or otherwise as a result of this Agreement, receives or has access to any Personal Information, the Supplier must, in respect of that Personal Information:
a. comply with the Privacy Act;
b. only use the Personal Information for the purpose of providing the Services.
11. Force Majeure
11.1 Neither party will be liable to the other for any failure or delay caused by an event of Force Majeure, provided that it complies with this clause. The affected party shall inform the other as soon as it is practicable to do so and shall take reasonable steps to overcome the failure or delay.
12. Health and Safety
12.1 The Supplier will consult, cooperate and coordinate with the Customer with a view to ensuring both parties comply with their respective obligations under the Health and Safety at Work Act 2015 as they relate to the performance of the Services.
12.2 The Supplier will, in performing the Services, comply with its obligations under the Health and Safety at Work Act 2015.
13. 1 Each party shall at all times keep confidential, treat as privileged, and not directly or indirectly make, or allow any disclosure or use to be made of the Confidential Information except to the extent:
a. required by law;
b. necessary to obtain the benefit of, or to carry out any obligations under, this Agreement;
c. that the parties otherwise agree in writing, which agreement shall not be unreasonably withheld or delayed; or
d. that the information is or becomes publicly available without breach by either party of its confidentiality obligations under this clause or at law.
14.1 The Supplier may vary these Terms and Conditions at anytime by giving the Customer 7 day’s written notice specifying the variation.
14.2 The Terms and Conditions will be governed in accordance with the law of New Zealand.
New Zealand Office
801/85 Beach Road
Auckland Central 1010, New Zealand
+64 9 914 6564
2/22 Tepko Road, Terrey Hills
Sydney, NSW 2084, Australia
+61 2 6189 8168