Version 5.0 Terms of Trade and AGREEMENT
1 Definitions
1.1 “Acronym” shall mean Acronym Limited, or any agents, contractors or employees thereof.
1.2 “Customer”, “You” and “Your” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person ordering Goods or Services from Acronym.
1.3 “Goods” shall mean all Goods supplied by Acronym to the Customer and shall include without limitation the supply of hardware, software, peripherals and accessories, and all relevant documentation, manuals, printed and written matter.
1.4 “Services” shall mean all Services supplied by Acronym to the Customer and shall include without limitation the provision of network services including hosted solutions, software development services, consulting services, project management services, onsite support services, or any fee or charge associated with the provision of Services by Acronym to the Customer.
2 Application of Terms of Trade
2.1 These terms of trade govern all supplies of Goods and Services from Acronym to the Customer.
2.2 Any Order received by Acronym from the Customer for the supply of any Goods or Services shall constitute acceptance of these terms of trade.
2.3 These terms of trade replace all earlier terms and agreements between the Customer and Acronym.
2.4 These terms of trade prevail over any other terms, including the Customer’s terms of trade.
2.5 Acronym reserves the right to amend these terms of trade by giving the Customer at least seven (7) days prior notice in writing, including by email, thereof. We may also give notice by directing you to the terms of trade on our website.
3 Goods Estimates
3.1 All Goods prices provided to the Customer are estimates only unless otherwise stated in writing by Acronym.
3.2 If, at the time of Acronym ordering Goods included in an estimate, the supplier’s price of those Goods has increased Acronym will review the estimate and provide the Customer with a new estimate.
3.3 All estimates exclude Goods and Services Tax (GST) unless specifically stated to the contrary.
4 Service Estimates, Rates & Packages
4.1 Acronym’s current hourly rates range between $130 & $300 plus Goods and Services Tax (GST). Acronym may change its rates from time to time.
4.2 Acronyms rates vary for different types of work e.g. contracted support, ad hoc support, Architecture Design and Advisory.
4.3 Acronym has ICT packages covering a full or selected range of services. Acronym may apply rebates for services based on consistent volume of work. Conditions apply.
4.4 Acronym’s minimum charge for service is 0.1hr (6 minutes) and in 0.1 hr intervals thereafter.
4.5 All work is on a time and materials basis unless a fixed price quote or estimate has been supplied by Acronym and accepted by the Customer. Price estimates can range +- 15%.
4.6 On-site support time is recorded from when the Acronym agent, contractor or employee departs from base to when the Acronym agent, contractor or employee returns to base.
4.7 We shall be entitled to annually apply a CPI indexed price increases to the financial charges for managed or hosted service agreements, in accordance with published Reserve Bank and/or Statistics New Zealand annual CPI data. Where they do apply these CPI financial increases shall be applied from 1st April in a given calendar year, and shall be based upon 12-month CPI data to the period ended the previous quarter, 31st December. This annual increase shall be in addition to any other rights we have under this Agreement in relation to adjustment to financial charges.
4.8 Managed and Hosted Service monthly fees may be adjusted in accordance with any consumed third party products if these products or service costs increase, not less than 60 days notice of price increases will be given.
4.9 All quotes and estimates exclude Goods and Services Tax (GST) unless specifically stated to the contrary.
5 Business Hours & Overtime Rates
5.1 Acronym’s standard business hours are from 8:30 am to 5:00 pm, Monday to Friday excluding public holidays.
5.2 Overtime rates apply Monday to Friday before 7.30 am and after 6:00 pm, and on any public holidays or weekends.
5.3 For planned overtime a surcharge of 25% upon Acronym’s applicable hourly rate applies. There is a minimum 1 hr service charge. Planned overtime is overtime scheduled a minimum of 24 hours in advance.
5.4 For unplanned overtime a surcharge of 50% upon Acronym’s applicable hourly rate applies. There is a minimum 2 hr service charge. Support is based on a best-efforts basis unless a service level agreement (SLA) has been purchased.
5.5 For all public holidays a surcharge of 50% upon Acronym’s applicable hourly rate applies. There is a minimum 2 hr service charge. Support is based on a best-efforts basis unless a service level agreement (SLA) has been purchased.
6 Ordering
6.1 Acronym will accept orders from the Customer in writing by Email or by submitting a Work Order with Acronym’s service desk, and by oral communication from an authorised person within the Customer’s organisation.
6.2 Acronym reserves the right to refuse to accept any Order or any part of an Order.
6.3 Acronym will not be liable to the Customer for any loss or damage arising in any way from any delay in delivery unless agreed to by Acronym in writing as part of the Order process.
6.4 For services exceeding $5,000 a minimum deposit of 20% will be required upfront. Monthly progress payments based on project % complete will be invoiced with payment due as per our standard credit terms with a final 15% payment upon final delivery of the project.
6.5 For goods exceeding $5,000 a minimum deposit of 50% will be required to place the order.
7 Returns, Cancellations and Credits
7.1 Acronym will not accept returns of goods that are damaged or modified.
7.2 Acronym will not accept returned Goods unless a mistake has been made by Acronym in the ordering of the Goods. The error or issue must be raised within one month of the delivery of the goods.
7.3 If you cancel an order in time for Acronym to cancel the order to the supplier without penalty then Acronym will not invoice You for the Goods.
7.4 If you wish to return Goods, you shall be liable for the cost of returning the Goods to Acronym’s suppliers and Acronym will only provide a credit for the Goods returned if the supplier accepts the returned Goods and provides Acronym with a full credit. In most cases suppliers require original packaging to be supplied with the returned goods.
8 Intellectual property
8.1 Neither Acronym nor its suppliers transfer any right, title or interest in any copyright, trade marks, or other intellectual property rights relating to any of the Goods, manuals, specifications, designs, drawings, documents or software supplied to the Customer except as set out in the software license supplied to the Customer.
8.2 Acronym – Software Development terms
8.2.1 The following clauses apply where you engage Acronym to develop customised software (“Developed Software”) for you.
8.2.2 Notwithstanding clause 8.2.3, Acronym agrees that you will own all intellectual property rights (except those referred to in clause 8.2.5) in any Developed Software created by Acronym for you and you can request a copy of the source code, upon payment in full of all amounts payable by you in relation to the Developed Software.
8.2.3 If the Developed Software is created in stages and billed to you in stages then ownership of all intellectual property rights (except those referred to in clause 8.2.5) in the Developed Software created up to that stage will be transferred to you upon payment of all amounts due up to that stage of the Developed Software.
8.2.4 Until payment is made in full of all amounts payable by you in relation to the Developed Software, Acronym retains ownership of all intellectual property rights in the Developed Software.
8.2.5 You will not obtain ownership rights in any of the following:
8.2.5.1 third party or open source software used in the Developed Software which will continue to be owned by third parties and not you. You must comply, and must ensure any users or licensees of the Developed Software comply, with the terms of any licence relating to such third party or open source software;
8.2.5.2 any idea, concept, knowhow or technique which is created or provided by Acronym in the development of the Developed Software and any template code and expertise developed prior to and /or independently of the Developed Software which will all continue to be owned by Acronym and may be used by Acronym as it deems appropriate. This will not permit Acronym to sell, assign, licence or otherwise deal in the completed version of the Developed Software.
8.2.6 Acronym must indemnify you against any loss, costs, expenses, demands or liability, whether direct or indirect, arising from a claim by a third party alleging that use by you of the Developed Software is an infringement of that third party’s intellectual property rights, to the extent that the claim arises from the manner in which the Developed Software is developed by Acronym and/or the resources used by Acronym in the development of the Developed Software.
8.2.7 You must indemnify Acronym against any loss, costs, expenses, demands or liability, whether direct or indirect, arising from a claim by a third party alleging that information or concepts provided by you to Acronym to enable Acronym to develop the Developed Software is an infringement of that third party’s intellectual property rights.
8.2.8 For the avoidance of doubt, end user software support is not part of Acronym’s software development services and you will need to engage Acronym separately and at additional cost to supply support services.
8.2.9 If you engage Acronym to host the Developed Software then additional hosting charges will apply. You must give 30 days’ written notice of cancellation of the hosting by Acronym. Provided you have paid all charges relating to the creation of the Developed Software and the hosting of the Developed Software up to the date of termination then Acronym will assist with the migration of the Developed Software to a third party for hosting and you must pay Acronym’s reasonable charges for assisting with such a migration.
9 Payments and Disputes
9.1 Acronym reserves the right to require prepayment for any Order or any part of an Order before accepting any Order or part of an Order.
9.2 Where Acronym has agreed to extend credit to the Customer, payment shall be made in full by the 20th day of the month following the date of invoice, or by the agreed payment date as stipulated in writing by Acronym at the time of ordering.
9.3 The Customer’s payment is deemed to be made once funds have cleared through the banking system into Acronym’s bank account.
9.4 Payment not settled by the due date will entitle Acronym to suspend supply of any Goods or Services for the Customer until the overdue amounts are paid in full.
9.4.1 Customers that are overdue by more than 30 days may be placed on stop credit.
9.4.2 Customers that are overdue by more than 60 days will be placed on automatic stop credit and may be passed on for debt collection.
9.4.3 Customers that are overdue by more than 90 days will automatically be passed onto a debt collection agency.
9.5 Acronym shall not be liable for any loss suffered by you where supply of any Goods or Services was suspended due to non payment.
9.6 The Customer shall be liable to pay any costs incurred by Acronym, including costs on a solicitor-client basis and debt collection agency fees incurred in the recovery or attempted recovery of outstanding monies and enforcement of these terms of trade.
9.7 Should any dispute over an invoice arise the Customer agrees to address this in writing to Acronym within five (5) working days of receipt of the invoice and pay the balance of the invoice that is not under dispute as per clause 9.2.
9.8 Notwithstanding clause 9.2, all payments shall immediately become due to Acronym:
9.8.1 if Acronym reasonably believes that the information that the Customer has provided in its application for credit is incorrect or no longer correct and the Customer has failed to give correct information to Acronym within five (5) days of Acronym’s request; or
9.8.2 if the Customer sells or otherwise disposes of any Goods without Acronym’s consent, or
9.8.3 if the Customer fails to comply with any of the provisions of these terms of trade, or
9.8.4 if the Customer becomes insolvent, commits any act of bankruptcy, or if a receiver, liquidator, voluntary or statutory manager is appointed over any of the Customer’s assets or undertakings, or
9.8.5 if the Customer makes or attempts to make an arrangement or compromise with creditors.
10 Errors or Omissions
10.1 Clerical errors or omissions, whether in computation or otherwise in any estimate, quotation, acknowledgement or invoice, shall be subject to correction by Acronym. Acronym will notify you of any pricing errors prior to placing any orders on your behalf.
11 Ownership and Risk
11.1 Ownership in Goods, whether in their original form or incorporated into or attached to another product, will not pass to the Customer but will remain with Acronym until Acronym receives payment in full for the Goods and all other amounts that the Customer owes to Acronym for any reason.
11.2 Notwithstanding that ownership in Goods may not have passed to the Customer, risk in the Goods will pass to the Customer where the Goods are delivered to the Customer or into the custody of a party acting on behalf of the Customer.
11.3 Until ownership passes to the Customer, the Customer shall receive and hold any Goods as trustee and bailee for Acronym, and store the Goods in such a manner to enable them to be identified and cross referenced to Acronym invoices.
12 Personal Property Securities Act 1999
12.1 If Acronym has a security interest, whether registered or not, in Goods and their proceeds, previously supplied to the Customer, that security interest is continued under these terms of trade.
12.2 The Customer grants Acronym a security interest in all Goods and their proceeds, supplied by Acronym to the Customer whether or not those Goods have become accessions to other Goods or processed or commingled into or mixed with other Goods. Where Goods that Acronym has supplied to the Customer have become mixed with similar Goods supplied by other persons, the Customer grants Acronym a security interest in the mixed Goods to the value of the Goods in the mixture that Acronym has supplied to the Customer but which have not yet been paid for. The Goods subject to the security interest will be described in Acronym’s invoices.
12.3 The Customer consents to the registration of any existing or future security interest on the Personal Property Securities Register.
12.4 The Customer agrees to do all acts necessary and to provide Acronym any information required to register a financing statement over the Goods and their proceeds, and that the Customer will advise Acronym immediately in writing of any changes to that information.
12.5 The Customer waives its rights to receive any verification statement in respect of any financing statement relating to the security interests in the Goods.
12.6 The Customer agrees that nothing in sections 114(1)(a), 117(1)(c), 133, and 134 of the Personal Property Securities Act shall apply to these terms of trade.
12.7 The Customer waives its rights pursuant to sections 116, 119, 120(2), 121, 125, 129, 131 and 132 of the Personal Property Securities Act.
12.8 The Customer agrees to supply Acronym, within 2 business days of its written request, with copies of all security interests, and the Customer authorises Acronym as Your agent to request information from any secured party relating to any security interest which is held in your possession or control.
12.9 The Customer agrees that Acronym at its option may require the Customer 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 Acronym, whether or not the change was initiated by the Customer.
13 Privacy Act 1993
13.1 The Customer consents to Acronym or its agents, including credit agencies and debt collection agencies, making credit reference enquiries, regarding the Customer with external parties to assess the Customer’s creditworthiness.
13.2 The Customer authorises any person or company to provide Acronym with such information as may be required in response to credit inquiries.
13.3 The Customer authorises Acronym to furnish to any third party details held by Acronym about the Customers credit history including any subsequent dealings the Customer may have with Acronym or as legally required.
14 Acronym Warranties
14.1 Goods are subject to their manufacturers’ warranties only. Acronym will pass on the benefit of those warranties to you or your customers, as the case may be, without itself being directly liable to You or Your customers under any other manufacturer’s warranty.
14.2 The Customer is responsible for the cost of returning Goods to Acronym or the Manufacturers representative for warranty service and the Customer may be responsible for additional costs including but not limited to freight, labour and travel.
14.3 Any warranty will be voided by unreasonable use, damage or misuse, including problems caused by misuse or damage after the Goods have left Acronym’s care, negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorised repairs, modifications or the addition of hardware, software or consumables not supported by the Manufacturer or supplied by Acronym.
14.4 Acronym may at its own labour cost contact manufacturers and deal with warranty claims for any Goods supplied by Acronym that are identified as faulty within the first calendar month after sale. This does not extend to time to identify the equipment as faulty or to any freight or travel costs.
14.5 You will not be entitled to the benefit of any warranty if any sum that you owe Acronym for any reason is overdue.
14.6 For Software Developed by Acronym we will fix any issues found and raised within the first 30 days from the release of custom software to a client’s production environment free of charge if the following conditions have been met:
14.6.1 That a sufficiently detailed scope was given to clearly define the parameters of the requirement with which there is an issue.
14.6.2 That the proposed solution was documented and agreed
14.6.3 The issue falls clearly within the agreed documented requirements that were used for the development
14.6.4 That new factors haven’t been introduced that adjust the situation significantly. Including, but not restricted to: significantly different data, scope creep, deployment changes.
14.6.5 That sufficient budget has been allocated to Acronym for initial testing.
14.6.6 The Client is responsible for User Acceptance Testing unless otherwise agreed. This user testing is required to be completed during the development phase and prior to the software being released to the production environment.
14.6.7 User Acceptance Testing must test all areas of the software.
14.6.8 Outside of the warranty conditions specified above Acronym will still work to resolve the issue, but this will be on a best effort, time and materials basis.
15 Customer Warranties
15.1 Where the Goods or Services that You acquire from Acronym are not of a kind ordinarily acquired for personal household or domestic use or consumption, or where You acquire, or hold Yourself out as acquiring, the Goods or Services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or implied by common law will not apply and are excluded from these terms of trade.
15.2 If You acquire any Goods or Services from Acronym for resupply as, or incorporate or attach any Goods or Services acquired from Acronym into, Goods or Services ordinarily acquired for personal household or domestic use or consumption (“Consumer Products”) You warrant that:
15.3 If You supply the Consumer Products directly to an end user or consumer You will do so using terms and conditions of supply which exclude Acronym from liability for any claims under the Consumer Guarantees Act 1993; and
15.4 If your customer acquires the Goods for resupply, Your customer and each person in the distribution chain will exclude Acronym from liability in its contract for supply for any claims under the Consumer Guarantees Act 1993, but in each case only where the end user or consumer acquires the Consumer Products for business purposes.
15.5 You must indemnify Acronym and its suppliers against any failure by You, Your customers or any person in your distribution chain to properly contract out of liability to business end users or consumers under the Consumer Guarantees Act 1993.
16 Limitation of liability
16.1 Acronym will not be liable for any loss or damage of any kind or any delay in supplying Goods or Services which are caused in whole or in part by Force Majeure event or any other cause beyond Acronym’s reasonable control. A Force Majeure event means any event beyond Acronyms’ reasonable control and includes, but is not limited to, strikes, power failures, fires, earthquakes and other natural disasters. Acronym shall not be required to settle a strike or lockout or other industrial disturbance against its wishes in order to benefit from this clause.
16.2 To the maximum extent permissible by law, Acronym, and its employees, contractors and agents, any manufacturers or developers of Goods or any of their materials or components and any suppliers of Services, will not be liable to You or to any other person for loss or damage of the kind named in this clause. This exclusion of liability is limited to consequential loss, loss of contracts, loss of profits and damage caused by or arising from delays in manufacturing or delivery, delayed installation, and faulty materials or components of the Goods.
16.3 Notwithstanding clause 16.2 if Acronym is found liable to you for any reason, its liability to You including costs of all kinds shall be limited to $1,000,000.
16.4 You indemnify Acronym against all costs and losses from claims from third parties arising for any reason whatsoever as a result of Your resupply, use or misuse of the Goods or Services.
17 General Conditions
17.1 The Customer shall not assign all or any of its rights or obligations under this agreement without the written consent of Acronym.
17.2 Acronym has the right to assign all or any of its rights under this agreement without the written consent of the Customer.
17.3 If Acronym fails to enforce any terms or to exercise its rights under these terms of trade at any time, Acronym shall not be deemed to have waived those rights.
17.4 If any provision of these terms of trade 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 spirit and intent of the parties as shown by these terms of trade.
17.5 These terms and conditions shall be governed by and construed in accordance with the law of New Zealand and the parties unconditionally and irrevocably submit to the exclusive jurisdiction of the New Zealand courts.