For the avoidance of doubt
(a) “Agreement” means the ‘Quote’ or ‘Statement of Work’ read in conjunction with these terms and conditions;
(b) “Client” includes the client’s employees, servants and agents;
(c) “Services” includes all equipment for purchase or hire, technical support, project work, items, articles, accessories and documents;
(d) Where more than one item is being supplied, the singular shall be read as the plural. These terms and conditions govern all orders placed by the client for the supply of equipment and services by Igtimi Limited (“Igtimi”). Igtimi expressly disclaims any acceptance of the Clients terms and conditions unless otherwise agreed by Igtimi in writing.
1. AGREEMENT FOR SERVICES
- If the Client wishes to purchase Services from Igtimi, the Client will send a written Request setting out:
(i) the Equipment or Service the Client wishes to purchase; and
(ii) other details as relevant to the Request; and
(iii) the Client agrees Igtimi shall not be responsible for any omissions or errors that may result due to an oversight or misinterpretation of the Clients instructions that have not been provided in writing; and
(iv) any variations to the original Request or further Requests for additional Services must also be made to Igtimi in writing.
- Igtimi may, at its discretion, decided whether to provide the Services set out in the Request and will notify the Client of the decision.
2. DELIVERY OF SERVICES
- Unless otherwise agreed in writing between Igtimi and the Client, Igtimi will:
(i) deliver the Services as per the Agreement to the Client by an agreed date. Igtimi and the Client will maintain communication throughout regarding deliverables. Any potential amendments to completion dates due to unforeseen factors will be advised as soon as practical; and
(ii) deliver any physical Equipment via CFR to the address of the Client’s preference as stated in the Request; and
(iii) the Client is responsible for all delivery charges, this includes additional costs in relation to storage, detention, import fees and similar contingencies which may arise.
- The Client will inspect Equipment immediately after delivery and will without delay contact Igtimi after such inspection if the Client believes the Equipment is damaged or faulty in any way.
- When Equipment is hired instead of purchased the Client will ensure that all Equipment is available, clean and in the condition in which it was originally delivered to the Client (subject only to normal wear and tear having regard to the length of the Period of Hire) before the Equipment is returned to Igtimi:
(i) If the Equipment is not returned at the end of Period of Hire, the Client will be charged additional rental, which will continue to accrue at Igtimi’s standard daily rental rate until the business day on which the equipment is returned complete with all accessories and undamaged; and where Equipment is not returned, lost or damaged, the standard daily rental rate will continue to be charged and is payable by the Client until replacement or repair of the Equipment. Igtimi will arrange for the repair or replacement of the Equipment with charges for the repair or replacement to be paid by the Client.
- Igtimi offers a warranty period of 1 year for new Equipment purchased. The warranty covers manufacturing faults but does not cover damage through incorrect use, environmental conditions and other unforeseen and uncontrollable events. The Client acknowledges that any manufacturing faults caused by salt water are not covered under warranty.
- Igtimi provides support for the operation of Equipment and Events. This service is offered free of charge to the Client via email (email@example.com). The Client acknowledges understanding that the support email address is:
(i) only monitored Monday through Friday during business hours of 9am-4pm NZST; and
(ii) that any support queries will be responded to within 2-5 business days; and
(iii) if the support query is not a fault of Igtimi hardware, firmware or software then the Client may be charged the time it took to investigate the issues at a cost of NZD$60 per hour plus GST if applicable.
- Igtimi can provide additional urgent support or on-call support. If the Client has requirements that fall outside the scope of the free service support then they should contact Igtimi to arrange for the support service that best suits the Client’s needs; if this additional support is required it will be priced on application specific to the request.
3. OWNERSHIP OF EQUIPMENT
- The Client agrees and acknowledges that the Equipment is the sole property of Igtimi until payment for the Equipment is received in full.
- The Client agrees not to deal with nor to permit, cause or suffer the Equipment to be dealt with in a manner prejudicial to Igtimi rights to the Equipment. In particular (but without limiting the generality of the foregoing) the Client agrees:
(i) not to sell, assign or pledge the Equipment; and
(ii) to protect the Equipment against distress, execution or seizure; and
(iii) not to remove any sticker from the Equipment giving notice of Igtimi ownership.
- The Client agrees and acknowledges that Intellectual Property on Project Work is the sole property of Igtimi. This includes copyright, patents, designs, trademarks, trade names, goodwill, trade secrets, confidential information and any other intellectual proprietary right or form of intellectual property:
(i) Igtimi grants the Client a personal, non-exclusive, non-transferable licence to use Igtimi’s intellectual property which forms part of the Equipment for the Clients internal business purposes, provided the Client shall not alter, remove, obscure or tamper with any trademarks, patent or copyright notice, or any confidentiality, proprietary or trade secret or other means of identification used on or in relation to Igtimi’s Intellectual Property or the Equipment; and
(ii) the Client shall not sell, lease, sub-license, lend, assign or transfer, in whole or in part, unlicensed third parties with access to Igtimi’s Intellectual Property without Igtimi’s prior written consent; and
(iii) the Client shall not authorise or permit any third party to do, any act which invalidates Igtimi’s Intellectual Property including without limitation, reverse engineer the Equipment or any software, circuits or components of the Equipment.
- The Client agrees to notify Igtimi of any actual, threatened or suspected infringement of any of Igtimi’s Intellectual Property.
- All Charges are in New Zealand Dollars and exclusive of GST. Igtimi will add to each Charge any GST that is chargeable under the Goods and Services Tax Act 1985.
- All Agreements detailing charges and related expenses of Igtimi are estimates only, and expire thirty (30) days from the date of the estimate:
(i) the Client is aware and accepts that estimates can be inaccurate, given the solution required may be unique and/or the extent of the Services required may not be able to be determined until work has commenced. Also, additional Requests or out of scope work will incur additional costs. Igtimi will notify the Client as soon as practical if price estimates are likely to be exceeded; and
(ii) the labour hours shown on Agreements are always estimates only. Actual hours may vary and will be reflected accordingly in the amount invoiced.
5. INVOICING AND PAYMENT
- Igtimi will provide the Client with invoices for all Charges, GST and other amounts payable.
- The Client will pay each such invoice:
(i) if the Client has applied and been accepted as an Account Client, by the 20th day of the month following invoice; and
(ii) in all other cases, before or at the time the relevant Service is delivered it is to be paid in full by internet banking or cash; and
(iii) all Agreements over $5,000 require at minimum a 15% deposit; and
(iv) some Agreements may require different payment terms with multiple progress payments, to be paid at different milestone stages throughout the duration of the project (Igtimi will provide project specific progress payment details in the Agreement); and
(v) Igtimi may impose a credit limit on the Client (or refuse to allow credit) should accounts fall into arrears.
- If an invoice is not paid by the due date for that invoice:
(i) Igtimi will charge, and the Client will pay, interest on any overdue amount of 10% per month, and all Igtimi’s expenses and legal costs (on a solicitor/own client basis) of recovering the overdue amounts; and
(ii) Igtimi may refer any overdue and unpaid amounts to a debt collection agency or agencies to recover such overdue amounts and the agencies’ charges for providing such services to Igtimi. Igtimi may share information about the Client with those agencies to assist with the collection of the debt.
6. RISK AND RESPONSIBILITY
- Risk and responsibility for the Equipment will:
(i) if being shipped via CFR pass to the Client at the time the Equipment is delivered to the Client; and
(ii) if being shipped via EXW pass to the Client at the time the Equipment leaves Igtimi; and
(iii) for Period of Hire Agreements will revert to Igtimi once the Equipment is back in the possession of Igtimi.
- Equipment will be deemed to have been delivered to the Client when the Client takes possession and control of the Equipment.
- The Client will bear the risk of any loss, theft, damage or destruction and if the Equipment requires repair or replacement as a result of the Client use of the Equipment the Client will bear the cost of any such repair or replacement including any freight charges incurred.
- Igtimi will not be liable for and the Client indemnifies Igtimi against all claims for loss or damage to any equipment or thing used in or connected to the Equipment which is not the property of Igtimi whether caused by the Equipment or not.
- Igtimi respects that information and material supplied by the Client may be confidential. Both Igtimi and the Client undertakes not to disclose the other Party’s Confidential Information to any person or organisation other than:
(i) ordered to do so by a Court or other authority of competent jurisdiction; and
(ii) until such time that is becomes publicly known.
- Igtimi and the Client will both ensure their personnel are fully informed of any confidentiality obligations that form part of the Agreement.
The Client will indemnify Igtimi for:
(i) the cost of any damage to or loss of Equipment that occurs at any time during which risk and responsibility for the Equipment rests with the Client in accordance with clause 6(a); and
(ii) against all costs, claims, demands, expenses, damages and liabilities of any nature whatsoever which may be made against Igtimi by third parties or which Igtimi may sustain, pay or incur as a result of or in connection with the provision of the Agreement.
(iii) all Igtimi’s expenses and costs (including legal costs on a solicitor/own client basis) of enforcing the indemnity and recovering the amounts due under it.
9. IGTIMIS’ LIABILITY
- Igtimi’s liability to the Client and anyone claiming through the Client is limited solely to direct losses or damage which arises directly as a result of a breach by Igtimi up to a maximum amount equal to the Charges received by Igtimi from the Client for the Agreement.
- Neither Igtimi nor its employees will under any circumstances whatsoever be liable for the Client’s indirect or consequential loss, or loss of profits, revenue, business, business opportunity, goodwill or anticipated savings.
The Client will ensure that at all times during any Period of Hire to have adequate insurance policies in place for at least the replacement value of any Equipment hired to the Client. If the Client makes a claim under an insurance policy for Equipment lost or damaged while risk and responsibility for the Equipment rests with the Client under clause 6(a), the Client will direct the insurer to pay any amounts paid out by the insurer on the claim to Igtimi (up to a maximum of the replacement value of the Equipment lost or damaged).
- Igtimi can amend these terms and conditions by giving the Client no less than 2 weeks written notice of the changes.
- The Agreements constitute the entire agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of the Agreements and supersede and cancel any previous agreement, understanding and arrangement relating thereto whether written or oral.
- The Agreements are governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of the Agreements.