Our standard terms under which all products and services are sold
This agreement is entered into as of the date of acceptance (the "Effective Date") between Prodigi Technology Services Limited and the Client.
In the Agreement, unless the context otherwise requires or is specified otherwise:
means any assumptions identified in the Sales Order.
means a day other than a Saturday, Sunday or public holiday in Invercargill, New Zealand.
means the client identified in the Sales Order.
means any Intellectual Property Rights of the Client which:
means the electronic information systems comprising any one or more of hardware, equipment, software, peripherals and communications networks owned, controlled, operated or used by the Client.
means the tasks that the Client is to carry out.
means the date specified as such in the Sales Order, or, if no date is specified, the date on which all Services and Deliverables have been provided by Prodigi and all Fees and any other amounts payable by the Client under the Agreement have been paid in full.
means any deliverables in the form of hardware or equipment.
means the specific amounts set out in the Sales Order which are to be payable by the Client to Prodigi for the provision of the Deliverables and Services.
means goods and services tax payable under the Goods and Services Tax Act 1985 (New Zealand).
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide.
means the Personal Property Securities Act 1999.
means the Personal Property Securities Register established under the PPSA.
means any Intellectual Property Rights of Prodigi which:
means the technology related products set out in the Sales Order which are to be provided by Prodigi to the Client.
means the project described in the Sales Order and includes the provision of any Services and Deliverables by Prodigi to the Client.
means the timetable (if any) set out in the Sales Order.
means the technology related services set out in the Sales Order which are to be provided by Prodigi to the Client.
means the specific terms and conditions (if any) set out in the Sales Order.
means the specifications (if any) set out in the Sales Order which are a description of the quality, functionality and performance required of any Deliverable or Services in the Sales Order.
means the date specified as such in the Sales Order, or, if no date is specified, the date on which both parties have signed the Sales Order.
means the sales order entered into between Prodigi and the Client which sets out in detail the Products and Services to be supplied by Prodigi to the Client.
means any third party software identified or stated as such in a Sales Order.
In the Agreement, unless the context requires otherwise:
Prodigi will, in accordance with accepted Sales Orders and/or Quotes:
a. provide the Services:
i. using appropriately qualified personnel; and
ii. in accordance with the Project Schedule; and
b. provide the Deliverables:
i. to meet the Specifications; and
ii. in accordance with the Project Schedule,
on the terms and conditions set out in the Agreement.
In providing the Services and/or Deliverables, Prodigi may require assistance from the Client and access to the Client’s premises. The Client will:
If during a Project:
(each a Project Affecting Event), then:
During the term of the Agreement, the parties will hold progress meetings for the purpose of allowing them to discuss the performance of the Services. These meetings will be held at such times and locations agreed between the parties.
Schedule 1 to these Business Terms applies if the Services and Deliverables involve the installation or supply of any Equipment to the Client. The Client acknowledges and agrees that the clauses in this section of these Business Terms do not apply to Equipment and any warranties for the Equipment are set out in Schedule 1 to these Business Terms.
Prodigi will at all times maintain liability insurance. This insurance will cover such claims as may arise under its obligations in the Agreement, during the term of the Agreement, in respect of any act or omission by Prodigi relating to its obligations under the Agreement. Upon the Client's request, Prodigi will provide a certificate of insurance evidencing such coverage.
Prodigi will issue invoices to the Client for the Fees, any agreed disbursements, and any other agreed costs or charges under the Sales Order.
On renewal of this agreement (as in Term and Termination) or every 12 months (whichever is later), the rates covered by this agreement may be increased based on the New Zealand CPI inflation rate as measured in the latest quarter and posted on the stats.govt.nz website.
In the event of a supplier price increase, Prodigi may increase prices by the same percentage with 30 days notice. Supplier prices increases due to currency fluctuations will be applied automatically.
The client will reimburse Prodigi for any expenses incurred by Prodigi in connection with the Services (including but not limited to travel and subscription fees). If a Sales Order so provides, Prodigi must provide the Client a receipt for any expenses in excess of the threshold amount stated in the applicable Sales Order.
The Client will pay each invoice in the manner and at the times specified in the Sales Order, or if not specified, by the 20th of the month following the month of the invoice.
If The Client disputes any invoice, it will give Prodigi notice of such dispute but will otherwise pay the undisputed part of the invoice. Any disputed amount will be resolved as in Disputes. If no notice of dispute is delivered by the due date of the invoice, the invoice is deemed as accepted by the Client.
If the Client fails to pay any amount due, Prodigi may without prejudice to its other rights or remedies under the Agreement:
All amounts payable under the Agreement are to be paid in New Zealand Dollars
All Fees and any other amounts payable under the Agreement do not include GST or any other taxes, duties or charges levied in New Zealand or overseas in connection with the Agreement.
Where Deliverables are provided under a Sales Order and are not stated in that Sales Order to undergo any Acceptance Tests, a Deliverable will be deemed to be accepted by the Client:
If the Deliverables are rejected by the Client, Prodigi will correct any deficiencies in such Deliverables so that the Deliverables materially conform to the Specifications.
This section survives termination of the Agreement.
Subject to the clause directly following this one, Prodigi acknowledges and agrees that all Intellectual Property Rights in the Deliverables (excluding the Prodigi Pre-existing IP and any Third Party Software), will vest absolutely in the Client on payment in full by the Client of all invoices issued relating to the provision of those Deliverables (and related Services).
Prodigi may include Prodigi Pre-existing IP in the Deliverables. The Client acknowledges that:
Client may provide the Client Pre-existing IP to Prodigi for the purpose of providing the Deliverables and/or Services. Prodigi acknowledges that:
The Client acknowledges and agrees that Prodigi may use for any purpose any of the Deliverables which by themselves provide generic technical information not unique to the Client’s business. Prodigi may also use for any purpose any Residuals resulting from the provision of the Deliverables under the Agreement. For the purposes of the Agreement, “Residuals” means any technical information related to computer software, technology or design which may be retained by persons involved in the performance of the Agreement in non-tangible form, including know-how, ideas, concepts and techniques.
This section survives termination of the Agreement.
Each party will treat as confidential all information obtained from the other pursuant to the Agreement. Neither party will divulge such information to any persons (except to their employees (for whom that party will be responsible) and then only to those employees who need to know) without the other party’s prior written consent.
In relation to either party, confidential information means any information relating to the business or affairs of that party and includes, without limitation, its designs, drawings, manufacturing know how, object code, source code, planned modifications to hardware or software, planned enhancements to hardware or software, product knowledge, quality standards, research and development, unpublished specifications, technical information, pricing, manipulated data, business plans, business processes, methodologies, techniques, general know-how, costs and margins, client lists, financial data, internal price information, market research, marketing plans, sales forecasts and trade secrets.
The above two clauses do not extend to information which:
If the recipient of any confidential information is required by any applicable law, court or authority to disclose such confidential information to any person, it will:
Each party will on demand and, in any event, on termination of the Agreement, deliver to the other party all confidential information and any other document supplied by or obtained from the other party.
The term of the Agreement will commence on the Start Date and continues, subject to the clause directly below this one, until the End Date (Initial Term), unless terminated earlier in accordance with the provisions of the Agreement.
Unless otherwise agreed in the applicable Sales Order, the Agreement will, at the end of the Initial Term, automatically renew for subsequent periods of the same length as the Initial Term (each period a Renewal Period) unless either party gives the other party at least 60 days’ (or a number of days equal to length of a term/renewal period if it is shorter than 60 days) prior written notice of its intention to terminate the Agreement at the end of the Initial Term or the then-current Renewal Period.
Either party may terminate the Agreement:
Prodigi may terminate the Agreement for convenience on 90 days’ prior written notice to the Client.
If, for whatever reason, the Agreement is terminated prior to the End Date, the Client will, in addition to the amounts payable under the clause below this one, pay to Prodigi:
Termination of the Agreement will not affect the provisions of the Agreement which are intended to continue, or should reasonably continue, after termination (whether expressly stated so or not). Termination will not affect any claim by either party against the other party arising out of any breach or failure under the Agreement prior to termination.
Either party may request changes to the level, scope or timing of any Services or Deliverables to be supplied pursuant to an Agreement (a Change). Where either:
Prodigi will propose an amendment to the relevant Agreement in accordance with the remaining provisions of this clause (a Change Submission) except where the parties agree that any change to the level, scope or timing of any Services or Deliverables can be agreed between the parties in writing without following the process set out in this clause.
Where the Client requests a Change, Prodigi will (unless otherwise agreed) deliver a Change Submission to the Client within 10 Business Days of receiving a written request for a Change from the Client. Prodigi may charge the Client for the preparation of a Change Submission at the Additional Services Rates, provided Prodigi notifies the Client of such charges prior to the preparation of the Change Submission.
Where Prodigi believes that a Change would be appropriate, Prodigi will notify the Client of this recommendation and prepare a Change Submission.
For each Change Submission submitted, Prodigi and the Client will evaluate the Change Submission and may:
Prodigi warrants to the Client that:
If a claim for a breach of the warranty above is brought against Prodigi, Prodigi will, at its election, either:
This clause sets out the Client’s sole and exclusive remedy in respect of any claim of copyright infringement.
The Client will indemnify Prodigi against all costs, expenses and damages incurred through any claims against Prodigi resulting from:
Prodigi will not be liable to the Client for loss of profits, loss or revenue, loss of data, or any indirect, consequential or special loss or damage suffered or incurred by the Client arising out of or in connection with the Agreement.
Prodigi’s liability to the Client arising out of all claims for loss or damage under the Agreement will not exceed in aggregate an amount equal to the Fees actually paid by the Client to Prodigi in the three months prior to the time the liability arises.
Prodigi may sub-contract any of its obligations under the Agreement. Prodigi will inform the Client of any work that is sub-contracted out. The Client's prior written consent is not required for sub-contracting. However, if Prodigi uses a sub-contractor in respect of the Agreement, Prodigi is not relieved of any of its liabilities or obligations under the Agreement.
If a dispute arises out of or relates to the Agreement (Dispute), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.
A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute (a Dispute Notice).
On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
If, despite the efforts made pursuant to the clause above, the Dispute is not resolved within 20 Business Days of the Dispute Notice being given (or within such longer period agreed as the parties may agree in writing) any party may, by giving written notice to the other party, require the Dispute to be submitted to mediation by a mediator. The mediator will be appointed by the parties or, if the parties cannot agree on a mediator within 10 Business Days of the written notice requiring mediation, a mediator will be appointed, on application of any party, by the President of the New Zealand Law Society within a further five Business Days. The mediation will be conducted in Invercargill, New Zealand and each party must attend the mediation, will bear its own costs of the mediation and will contribute equally to the cost of the mediator.
If, within 40 Business Days of the notice requiring the Dispute to be submitted to mediation under clause 12.4, the parties are unable to reach agreed settlement at a mediation or the parties have not attended a mediation (whether due to one party failing to attend or otherwise), then either party may, by giving written notice to the other party, require the Dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the parties or, failing agreement within 5 Business Days of the notice requiring arbitration, by the President of the New Zealand Law Society on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.
The Agreement (including the Sales Order) constitutes the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter.
Any proposal documents, descriptive matter or advertising issued by Prodigi and any descriptions of the Services or Deliverables contained in Prodigi's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Deliverables described in them. They do not form part of the Agreement or have any contractual force.
The Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
If any part or a provision of the Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of the Agreement will continue to operate.
A provision or a right under the Agreement may not be waived except in writing signed by the party granting the waiver.
A party may exercise a right, power or remedy under the Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under the Agreement does not prevent a further exercise of that or of any other right, power or remedy.
The Agreement may not be varied except by agreement in writing signed by the parties.
Client will not assign, transfer or otherwise deal with the Agreement or any of its rights or obligations under the Agreement, whether in whole or in part, without the prior written consent of Prodigi.
Notices and other communications under the Agreement are to be given in writing by email, facsimile, personal delivery or by post and must be:
A notice or communication in relation to the Agreement will be deemed to be received:
The Agreement will be governed by and construed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.
Where the Client requests Equipment, or a Deliverable includes the supply or installation of Equipment as part of the Services, and Prodigi agrees to supply such Equipment to Client, in any Sales Order, the terms of this Schedule will apply.
Prodigi will:
Where the Equipment is purchased by the Client, unless the applicable Sales Order specifies otherwise:
a. legal and equitable ownership of all Equipment supplied by Prodigi is retained by Prodigi until full payment is made by the Client of all amounts the Client owes to Prodigi for the relevant Equipment; and
b. where title has not passed to the Client:
i. and the Client is in possession of the Equipment, the Client will hold that Equipment on trust for Prodigi and will store the Equipment in such a manner as to make it readily identifiable as belonging to Prodigi; and
ii. the Client must not sell, dispose of, or otherwise part with possession of, the Equipment, except for in the ordinary course of Client’s business. If any Equipment is sold by the Client, then all proceeds of sale will be the property of Prodigi and will also be retained on trust by the Client for Prodigi. This authority to deal with the Equipment is revoked immediately in the event of termination by Prodigi.
Where Equipment is leased to the Client irrespective of any period of credit, unless the applicable Sales Order specifies otherwise:
Unless the applicable Sales Order specifies otherwise, and irrespective of whether the Equipment is purchased by, or leased to, the Client, risk in any Equipment supplied by Prodigi will pass to the Client when that Equipment is delivered to the Client’s site.
The parties agree that sections 114(1)(a), 120(1), 122, 133 and 134 of the PPSA will not apply on the enforcement by Prodigi of any Security Interest created or provided for by this Agreement. The Client waives any rights the Client may have under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA on such enforcement.