Terms & Conditions of trade

Terms of Trade

These Terms and Conditions of Trade (Terms) apply to any web development, web design, mobile applications for Android, Apple, windows phones and tablets (App Development), hosting and support services; in addition to any other services of any nature, including without limitation, any software engineering, software development, business consulting and training services (together the Services) Quentosity Limited (Quentosity) may provide to any specific third party (Customer).

1. HOSTING AND SUPPORT

1.1. Where Quentosity provides technical website support to the Customer (Support), such Support excludes:

a. On site attendance at the Customer’s premises;

b. Any time spent to resolve any issues with the Customer’s computer system created by any operator error on the part of the Customer or any action of any third parties whether authorised or unauthorised by the Customer;

c. Resolving any issues created by new third party hardware or software introduced to the Customer’s computer system without Quentosity’s knowledge and approval;

d. Resolving any issues which are solely caused by the actions of third parties and originate outside of the Customer’s computer system e.g. internet service provider faults;

e. New development work in respect of the website;

f. Bug fixes; and

g. Support not directly supplied to the website.

1.2. Hosting means the following services:

a. Hosting of the website via such domain specified and owned by the Customer and to which the Customer is able to provide Quentosity any required access and such other sub-domains thereof as may be required, including hosting any new developments as part of the website which may be agreed on a case by case basis with Quentosity;

b. Using best endeavours to providing the Customer details relating to faults or outages of the website;

c. Providing suitable storage (subject to any limitations otherwise specified by Quentosity) for the website to operate effectively.

1.3. As part of Hosting, the Customer will be granted a licence to use Quentosity’s standard proprietary website software tools (Tools) as available from time to time, to assist in the administration and management of its website.

1.4. Where the Customer requests Quentosity to register any domain name on its behalf, the Customer will be notified of Quentosity’s charges for doing so and agrees to pay those charges in accordance with clause 3.

1.5. Quentosity is instructed to renew any domain name registration unless specifically requested not to do so by the Customer. The Customer shall pay the charges in accordance with clause 3.

1.6. The Customer is responsible for complying with all terms and conditions relating to any registered domain name, such as may be required by the ‘Registry’ that is responsible for administering the registration of such domain name.

1.7. Where the Customer requires Quentosity to recover information from any hosting backups (Backup), this work will be charged at Quentosity’s applicable standard service fee, however, no service fee will be charged where recovery is required solely due to the direct fault of Quentosity.

1.8. Quentosity cannot guarantee an Internet Service Provider’s service nor continuous Hosting, but will use its best endeavours to provide continuous availability of Hosting.

1.9. In order to ensure the ongoing effective hosting of the Website, Quentosity may need to periodically carry out general software and hardware maintenance. The Customer accepts that during such periods the website will not be available. To the best of its ability Quentosity will endeavour to:

a. Minimise any unavailability of the website due to maintenance;

b. wherever reasonably possible, schedule such down time for weekends; and

c. Wherever reasonably possible to do so, provide the Customer with at least three days prior written notice of any such down time.

2. TERM

2.1. Hosting and Support will be provided by Quentosity from an agreed commencement date (Commencement Date) including as may have been detailed in any quote (Quote).

2.2. If no Commencement Date has been agreed between the parties then the Commencement Date will be deemed to be the date that Quentosity begins to provide the Hosting and Support to the Customer.

3. PAYMENT

3.1. The Customer agrees to pay Quentosity such amount(s) as detailed in any Quote and/or agreed to by the parties (Fee/s).

3.2. Where Quentosity has agreed the Customer may pay the Fee on a monthly basis, each month the Customer must pay the monthly portion of the annual Fee.

3.3. On receipt of a valid GST invoice from Quentosity, all payments due to Quentosity must be made:

a. In full without any deduction, set off, counterclaim or otherwise; and

b. By automatic payment to such bank account as Quentosity may notify the Customer in writing from time to time.

3.4. If the Fee is not paid by the due date, Quentosity may require the Customer to additional costs, including:

a. Interest on any such overdue Fees, costs and expenses at a rate of 15 percent per month;

b. Any costs and expenses incurred by Quentosity in collecting overdue Fees, including without limitation third party debt collection and legal costs;

c. An overdue account administration charge of $50.00 plus GST for any Fee more than ten days overdue;

3.5. Unless specified otherwise in these Terms all amounts stated are exclusive of any GST if applicable.

4. CREDIT ACCOUNTS

4.1. The Customer may request a credit account (Account).

4.2. The opening of an Account at the sole discretion of Quentosity, and subject to provision of all necessary information by the Customer. The Customer warrants that any information provided to Quentosity to support an application for an Account is true and correct.

4.3. Quentosity may at any time in its sole discretion, on written notice to the Customer, suspend the offering of credit to the Customer or terminate the Account. In either case, all amounts outstanding under the Account shall become immediately due and payable by the Customer to Quentosity.

5. RISK, TITLE AND SECURITY

5.1. Risk in all materials and the physical product of any Services provided by Quentosity to the Customer (Goods) shall pass to the Customer upon delivery to the Customer.

5.2. Legal title and ownership of the Goods shall not pass to the Customer until Quentosity has received payment of the Fee for the Goods, including any amounts otherwise owing to Quentosity pursuant to clauses 3 and 5.12.

5.3. Until property in the Goods passes, the Customer:

a. Must insure the Goods against any loss or damage with an insurance office of repute;

b. Must store the Goods separately or in some other way ensure they are readily identifiable as the property of Quentosity;

c. Irrevocably authorises representatives of Quentosity to enter the Customer’s premises where the Goods are stored for the purpose of repossessing them and, where possible, subsequently reselling them or enforcing the Security Interest (as that term is defined in the Personal Property Securities Act 1999 (the PPSA)) created pursuant to this Agreement ;

d. Must keep the Goods free from any charge, lien or other third party encumbrance that has priority to Quentosity’s rights in the Goods as provided for in this Agreement; and

e. Must not change its name without first notifying Quentosity of the new name not less than 7 days before the change takes effect.

5.4. The Goods shall be the collateral as that term is defined in the PPSA.

5.5. The Customer will, when requested by Quentosity, promptly execute any documents and do anything else to ensure that any Security Interest constitutes a first ranking perfected Security Interest over the Goods and their proceeds, including provision of any information Quentosity reasonably requires to complete a Financing Statement or a Financing Change Statement (as those terms are defined in the PPSA).

5.6. The Customer waives any right to receive a copy of a Verification Statement (as that term is defined in the PPSA) under the PPSA.

5.7. Quentosity will pay all costs, expenses and other charges incurred, expended or payable by Quentosity in relation to the filing of a Financing Statement or a Financial Change Statement in connection with this Agreement.

5.8. The Customer agrees that the rights of the Customer as a debtor in sections 116, 120(2), 121,125, 126, 127, 129 and 131 of the PPSA shall not apply to this Agreement.

5.9. The customer acknowledges that this Agreement constitutes a Security Agreement (as that term is defined in the PPSA) for the purposes of the PPSA and creates a Purchase Money Security Interest (as that term is defined in the PPSA) in the Goods.

5.10. The Customer acknowledges that Quentosity has the sole and absolute discretion to apply all amounts received in relation to Goods in any manner it determines.

5.11. The Customer will not allow a Security Interest to be created or registered over the Goods in priority to the Security Interest held by Quentosity.

5.12. The Customer will on demand, pay all costs and expenses incurred by Quentosity as a result of enforcing any of its rights under this clause 5 of this Agreement.

5.13. Any stated, granted or related rights of the Customer pursuant to clause 15 are at all times subject to the rights granted to Quentosity pursuant to this clause 5.

5.14. For the avoidance of doubt, and without limiting Quentosity’s Security Interest, Purchase Money Security Interest and other associated rights in respect of the Goods provided for in these Terms, the Terms are not intended to create a specific contractual lien that would limit or derogate from any lien over the Goods or any applicable Services rendered by Quentosity.

5.15. In respect of credit enquiries, the Customer authorises Quentosity to contact any credit agency, referee, or any other source (Source) in order to check, exchange or provide information in relation to the Customer and the Customer authorises each Source to provide Quentosity any information response to such credit enquiries.

6. PRIVACY ACT 1993

6.1. The Customer authorises Quentosity or its agents to:

a. Access, collect, retain and use any information about the Customer:

i. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness;

ii. for the purpose of meeting Quentosity’s obligations and enforcing Quentosity’s rights under these terms and the Quote; or

iii. for the purpose of marketing products and services to the Customer;

b. Disclose information about the Customer, whether collected by Quentosity from the Customer directly or obtained a Source, to any other credit provider or any credit-reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.

c. With the exception of any confidential information, exchange the information Quentosity holds about the Customer with its contractors, agents, representatives and carriers for the purpose of meeting its obligations under these Terms and the Quote.

d. Monitor and record calls the Customer makes to Quentosity and vice versa in order to improve the service Quentosity provides and to assist Quentosity with meeting its obligations to the Customer.

7. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES AND RIGHT TO REGISTER A MORTGAGE

7.1. Where a third party has guaranteed a Customer’s obligations under these Terms, the guarantor’s liability is in addition to the Customer’s liability. The guarantor’s liability shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in these Terms.

7.2. The Customer agrees that Quentosity shall have the right to complete and register a mortgage over any property owned by the Customer and/or any guarantor of the Customer to secure any amount owing by the Customer to Quentosity; and shall have the right at its discretion to register a caveat on the title to any such property for the purpose of this clause and the Customer and/or the guarantor hereby irrevocably appoints Quentosity or a director of Quentosity as the attorney of the Customer and/or the guarantor for the purpose of the Company exercising its rights under this clause.

8. PRICE INCREASES

8.1. Excluding the Web Development Payment where a set price quote has been provided for the New Website Design and Development Services, if Quentosity wishes to increase any of the amounts payable specified in these Terms which Quentosity charges (Rates), Quentosity must provide the Customer notice of any such Rates increase at least two months prior to the date the Rates increase is to take effect from.

9. SUSPENSION

9.1. Without in any way limiting any of Quentosity’s other rights at law or as otherwise provided for in these Terms:

a. failure by the Customer to pay Quentosity any monies due and owing to Quentosity pursuant to these Terms; or

b. breach of clause 10.4 or 10.5 by the Customer,
will entitle Quentosity to suspend immediately without notice and liability all or any Services.

10. WARRANTIES

10.1. To the fullest extent permitted at law, Quentosity disclaims all warranties either express or implied with respect to the supply of:

a. the Services; and

b. any third party services.

10.2. The Customer agrees that the provisions of the Consumer Guarantees Act 1993 will not apply to any Services provided under these Terms.

10.3. In the event that any Goods or Services provided pursuant to these Terms are not supplied in accordance with these Terms, or any warranty which Quentosity must comply with is found to apply (in respect of which clause 10.1is not effective), then to the fullest extent permitted by law, Quentosity, at its option, may within 30 days remedy any defect in the supply of such Goods or Services or reimburse any monies paid to Quentosity relating to the supply of the Services provided that the defect is notified by the Customer to Quentosity within thirty 30 days of provision of the applicable Goods or Services.

10.4. The Customer warrants that no application, material or content that Quentosity is required to provide the Hosting in respect of, will infringe the rights of any third party or breach any law or regulation, or be of an objectionable nature (as determined by Quentosity in its sole discretion); and Quentosity will without liability be entitled to delete any such material as it sees fit.

10.5. The Customer warrants that it will not from an email address which is hosted as part of the Hosting, send spam or other duplicative or unsolicited messages in violation of applicable laws including without limitation the Unsolicited Electronic Messages Act 2007. Quentosity at its sole discretion acting reasonably shall be entitled to determine when there has been a breach of this warranty and without limiting any other provision of these Terms Quentosity shall be entitled without liability to take such actions as it deems appropriate in the circumstances.

11. LIABILITY

11.1. Except as otherwise provided in these Terms, and to the greatest extent permitted at law, under no circumstances will Quentosity, its employees, contractors or agents be liable to the Customer for any loss, damages or costs of any nature whatsoever whether direct or consequential, (including but without limitation any economic loss or other loss of turnover, profits, business or goodwill) no matter how arising, as a result of Quentosity’s breach of these Terms.

11.2. Clause 11.1 shall not exclude any liability of Quentosity which arises from wilful misconduct or gross negligence on the part of Quentosity.

11.3. In the event that any limitation or provision contained in these Terms is held to be invalid or unenforceable for any reason and Quentosity becomes liable for loss, damages or costs that would otherwise have been excluded; and also in respect of any liability pursuant to clause 11.2 Quentosity’s maximum liability to the Customer under these Terms shall be limited to the Fees to Quentosity by the Customer in the then previous six month period.

11.4. Quentosity will not be liable to the Customer in relation to:

a. The malicious actions of third parties such as in the case of hacking or denial of service attacks;

b. The loss of any application, material or content that Quentosity is providing the Hosting of including the failure of any Backup or an inability to recover information from any Backup; and

c. Any delays or issues in providing any Services pursuant to these Terms where such is related to domain names which have been registered for the Customer by a third party.

11.5. The Customer will indemnify Quentosity on demand in relation to any loss, damages or costs of any nature whatsoever suffered as a result of any breach of these Terms by the Customer.

11.6. The Customer acknowledges that where Quentosity has been requested to provide and/or develop a new or unique solution or functionality as part of the Services, that it may not be possible for Quentosity to accurately estimate upfront the likely timeframe such work may require, or the likelihood (due to a number of factors) that such a request may be able to be delivered successfully. In such cases, provided Quentosity can demonstrate it acted in accordance with Quentosity’s standard practices in trying to meet the Customer’s desired outcomes, Quentosity will not be liable to the Customer for a failure to achieve any such outcomes.

11.7. Quentosity shall have no responsibility for the Customer’s site going down due to hacking or outdated systems, if the Customer has not subscribed to a specific Maintenance Plan as set out in the Quote.

11.8. Quentosity shall not be liable for any delay in provision of Services due to a Customer’s failure to provide information required by Quentosity to perform the Services.

11.9. The parties acknowledge and agree that the limitations contained in this clause are reasonable in the light of all the circumstances.

12. SUBCONTRACTING

12.1. Quentosity may perform any or all of its obligations under these Terms or any Quote through agents or sub-contractors.

13. CONFIDENTIALITY

13.1. Subject to clause 13.213.1, Quentosity and the Customer both undertake to treat as confidential and keep secret all information marked which may reasonably be intended to be confidential, including, without limitation any information related to Quentosity’s business practices and operating procedures disclosed to the Customer.

13.2. The parties acknowledge that disclosure of such information pursuant to any law, regulation, court order or valid government department or agency legal requirement is valid, provided the party:

a. Gives advance notice of such disclosure is provided to the other party;

b. Co-operates fully to prevent disclosure of the information; and

c. Only discloses that portion of the information necessary to comply with such requirement.

13.3. The parties shall divulge information only to those of their employees, agents or sub-contractors who are directly involved in the performance of that party’s obligations pursuant to any agreement and shall ensure that such employees, agents or subcontractors are aware of their requirement to comply with these obligations of confidentiality.

14. ACCESS AND PERMISSIONS

14.1. The Customer shall ensure that at all times Quentosity is granted all necessary licences, permissions and access reasonably required to perform Services including. without limitation:

a. physical access to any relevant premises and hardware;

b. logon and password access to any relevant computer systems; and

c. remote online access to any relevant computer systems where available.

14.2. Without any liability, Quentosity shall be entitled to suspend provision of Services where the Customer fails to comply with clause 14.1.

15. INTELLECTUAL PROPERTY

15.1. All Intellectual Property including, without limitation, all systems, documentation and software and all associated rights of any nature, created by Quentosity shall remain the property of Quentosity and unless provided for otherwise in this Agreement the Customer obtains no rights in respect of such.

15.2. For the avoidance of doubt, and without limitation of clause 15.1, Quentosity will not obtain any rights in the Intellectual Property of the Customer by virtue of the provision of the Services.

15.3. For the purposes of this clause 15 ‘Intellectual Property’ shall mean all vested, contingent, and future intellectual property rights including but not limited to copyright, trademarks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, database rights and any applications for the protection or registration of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created.

16. BREACH AND TERMINATION

16.1. Either party may terminate any of the Services to be provided pursuant to these Terms (Innocent Party) immediately on written notice to the other (Second Party) in the event that:

a. There is a material breach of these Terms or any warranty given by the Second Party and such breach is not cured within 30 days of the receipt of written notice from the Innocent Party specifying the particulars of the breach, and provided that such breach is not the subject of any legitimate dispute; or

b. The Second Party is placed in receivership, liquidation or voluntary administration.

16.2. Quentosity may terminate any of the Services provided under these Terms immediately on written notice to the Customer, where:

a. Quentosity has suspended the offering of credit to the Customer or terminated the Account;

b. Quentosity has suspended the provision of any Services;

c. The Customer is not actively and reasonably to resolve any Fees then owing to Quentosity.

16.3. Notwithstanding any other provision of these Terms, no provision of these Terms will in any way constrain or restrict Quentosity from complying, without liability, with any obligations pursuant to the Copyright Act 1994 or any further legislation, legislative provision or regulation that replaces or is intended to supplement or be observed in relation to the Copyright Act 1994.

17. DISPUTE RESOLUTION

17.1. In the event that there is a dispute in respect of these Terms or Services provided in accordance with them, one party must immediately notify the other party in writing giving details of the dispute. Quentosity’s address is as published on Quentosity’s website. The Customer’s address will be taken to be the last current address or email address provided by the Customer to Quentosity.

17.2. If the parties cannot resolve the dispute within 14 days from receipt of the notice required by clause 17.1, the dispute will then be submitted to mediation by a mediator agreed to by the parties, or failing agreement, appointed by the Arbitrators and Mediators Institute of New Zealand at the request of either party.

17.3. If the matter is not resolved by mediation within 14 days from commencement of mediation, the matter will be submitted to arbitration in accordance with Schedules 1 and 2 of the Arbitration Act 1996, for determination by a single arbitrator appointed by the parties or, failing agreement, appointed by the Arbitrators and Mediators Institute of New Zealand at the request of either party.

17.4. Any such mediation or arbitration shall take place in Tauranga, New Zealand, at such venue as the parties shall agree or, failing agreement on a venue, by such means (including without limitation teleconference or videoconference) as the parties shall agree or, failing agreement, by such means as may be determined by the applicable mediator or arbitrator.

17.5. All costs in relation to the staging of such resolution processes (excluding for the avoidance of doubt any awards which may be made) shall be borne equally by the parties unless explicitly stipulated otherwise by the arbitrator or agreed otherwise by the parties.

17.6. Clause 17 shall not prevent Quentosity’s ability to enforce payment of Fees, or prevent it from issuing court proceedings for the same.

18. GENERAL PROVISIONS

18.1. Neither these Terms nor any Quote shall be deemed to constitute a partnership or joint venture or contract of employment between the parties.

18.2. Neither party shall be liable for any failure to meet their obligations under these Terms due to the occurrence of any event beyond the reasonable control of that party including without limitation, any ‘Act of God’, fire, accident or natural disaster.

18.3. Failure or omission at any time by either party to enforce or require strict or timely compliance with any provision of these Terms shall not affect or impair that party’s right to avail itself of the rights or remedies that may be available to it under these Terms and shall remain enforceable at all times.

18.4. These Terms shall be construed in accordance with the laws of New Zealand. Any proceedings arising in respect of these Terms will be subject to the exclusive jurisdiction of the Courts of New Zealand.

18.5. Except as explicitly provided in these Terms, the Customer may not assign or otherwise deal with their rights and obligations under these Terms.

18.6. Quentosity retains the discretion to amend or vary these Terms at any time as is reasonably required. Any variation shall be notified to the Customer before taking effect.

18.7. If any part, clause or provision of these Terms is deemed invalid or unenforceable by any court having jurisdiction, such part, clause or provision is deemed to be severed and the remainder of these Terms or any such Quote will continue to be binding on the parties.

18.8. These Terms constitute the entire agreement between the parties in respect of their subject matter and supersede any previous understandings or agreements, including without limitation any verbal discussions or emails exchanged by the parties in relation to that subject matter.

18.9. Unless recorded in a Quote, the Customer has not relied upon any representations made by Quentosity whatsoever before accepting these Terms.

18.10. In the event that either party reasonably requires additional time to comply with any of its stated obligations pursuant to these Terms, the other party will act reasonably in considering any such request for additional time.