1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the contrary intention appears or the context requires otherwise:
Agreement means “these Terms and Conditions and any appendix or schedule to them”;
Charges mean the “charge or charges for the Services as displayed on the MyChecks application;
Confidential Information means “information relating to the Customer’s business affairs received by TIMG in the course of providing the Services and includes the Records and any Personal Information but excludes all information, which is in the public domain or was known by TIMG prior to the disclosure by the Customer”;
Contract Period means “the one month period commencing on the Start Date and each succeeding one month period throughout the Term of the Agreement”;
Customer means “the party named, its subsidiaries, successors and permitted assigns”;
Force Majeure Event means “any event outside the party’s reasonable control, including but not limited to an act of nature, government or quasi-government act or regulation, riot, act of terrorism, war, flood, fire, industrial disputes, epidemic, or any risk to health or safety”;
Goods means “any goods provided by TIMG”;
GST means “any consumption tax, goods and services tax, value-added tax and any similar tax, impost or duty”;
Initial Term means “the period specified on page 2 (or if not so specified, the period of one month) commencing on the Start Date”;
Insolvency Event includes the winding up, dissolution or cessation of business, the appointment of an administrator, or an official manager, an assignment for the benefit of creditors, scheme or arrangement with creditors, insolvency, bankruptcy of a party or any similar procedure;
Intellectual Property means “all intellectual property (registered or unregistered) and includes without limitation: customer information, drawings, inventions, improvements, technical data, formulae, computer programs, databases, designs, patents and trademarks”;
MyChecks is the trading name for the background checking service provided by TIMG
Personal Information has the meaning assigned to it in the Privacy Act; Privacy Act means “the Privacy Act 1993 as amended, and includes the regulations and any guidelines issued by the Privacy Commissioner from time to time”;
Services means “all of the services including, but not limited to, processing background checks; and web hosting for the purposes of viewing background check results”; and the additional services offered by TIMG and requested by the Customer from time to time;
Special Conditions means “those conditions agreed by both parties and specified as such on the cover sheet of this Agreement”;
Start Date means “the date specified as the start date on page 2 of this Agreement, or if no date is specified, the date that this Agreement is executed by both parties”;
Term means “the term of this Agreement, being the Initial Term plus any subsequent rollover periods pursuant to clause 3.2”.
In this Agreement, unless the contrary intention appears:
a. The singular includes the plural and vice versa;
b. A reference to a person includes a reference to the person’s executors, administrators, successors, substitutes, assigns, employees, agents, representatives and contractors;
c. If a period of time is specified, and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
d. Headings in this agreement are inserted for convenience and do not affect the interpretation of this agreement;
e. A reference to a statute, mandatory guideline or other law includes regulations and amendments, or replacements of that statute, ordinance, code, guideline or law;
f. A reference to a clause or provision is a reference to a clause or provision under this Agreement.
1.3. The Special Conditions form part of this Agreement and prevail to the extent of any inconsistency between the Special Conditions and the Terms and Conditions of this Agreement.
1.4. Consumer Guarantees Act 1993: Where the Customer is a business (as “business” is defined in the Consumer Guarantees Act 1993), the Customer agrees that it is acquiring the Company’s services for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply. Where the provisions of the Consumer Guarantees Act apply, these Conditions will be read subject to the application of that Act, and in the case of any conflict, the provisions of that Act will apply.
2.1. TIMG agrees to provide the Services to the Customer on the Terms and Conditions of this.
2.2. TIMG agrees, having regard to the nature of the Services being provided, to perform the Services in a proper and professional manner and in accordance with industry practice.
3. TERM OF THE AGREEMENT
3.1. This Agreement commences on the Start Date and continues for the Initial Term unless terminated earlier in accordance with clause 8. Either party may terminate this Agreement with effect from the end of the Initial Term by giving the other party written notice not less than 30 days before the end of the Initial Term.
3.2. If this Agreement is not terminated as at the end of the Initial Term, this Agreement continues automatically for equal succeeding periods (equivalent to the Initial Term) until it is terminated with effect from the end of the then current period by either party giving written notice to the other not less than 30 days before the end of that current period.
4. CHARGES AND PAYMENT
4.1. In consideration of the provision of Services by TIMG, the Customer must pay the Charges to TIMG in full 20 days after the end of the month in which the invoice is dated unless specified otherwise on the invoice.
4.2. In addition to the Charges, the Customer will pay to TIMG any GST or relevant taxes in respect of the provision of the Services, on the same date on which payment for the relevant Services are due and payable.
4.3. TIMG may vary the Charges by notice to the Customer giving 30 days’ notice to the Customer. The varied Charges will take effect from the date specified. 4.4. The Customer must pay an additional charge for any additional services requested by the Customer. The charges for additional services will be at TIMG’s then-current standard charge for that service (List Price).
4.5. All charges and payments payable by the Customer to TIMG under this Agreement must be paid free of set-off and without deduction.
4.6. At TIMG’s discretion the payment of an advance deposit and authorised direct debit/credit authority may be required against charges to be rendered.
4.7. If the relevant payment is not received from the Customer by the date when it is due and payable, TIMG may in addition to its rights and remedies at law or equity, do any one or more of the following:
a. Charge the Customer interest on the outstanding amount from the due date, at a rate equivalent to the BNZ Business Index Rate as at the due date plus a margin of 3% per annum and charged daily;
b. Recover from the Customer any reasonable costs, which TIMG may incur in recovering any outstanding amounts from the Customer;
c. Suspend all or part of any Service until the Customer has paid to TIMG all outstanding amounts;
e. Terminate this Agreement in accordance with clause 8; and
f. Exercise its rights under the lien specified in clause 7.3(d).
4.8. Where any invoiced Charges remain unpaid for a period of 12 months or more and the Customer has not responded within a reasonable time to the most recent notice from TIMG in relation to the unpaid Charges, TIMG may, without further notice or compensation to the Customer, destroy the Records in its possession to which the unpaid Charges relate.
5. THE CUSTOMER’S ACKNOWLEDGEMENTS
5.1. The Customer warrants that:
a. The Customer has gained the permission of the individual to purchase background checks prior to requesting a new check on MyChecks. b. The customer will access, store and dispose of any material (including “the proof” of checks) in accordance with the obligations under the Privacy Act 1993 as amended.
5.2. The Customer acknowledges and agrees that:
a. TIMG has relied on the Customer’s warranties in clause 7.1 in providing the Services;
b. The Customer is satisfied that the Services are suitable for its requirements;
c. f. TIMG is not responsible for ensuring that the Customer complies with any statutory or other obligations that the Customer may have regarding the preservation, encryption or maintenance of the data received from MyChecks;
6.1. Without limiting their other rights under this Agreement, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
a. An Insolvency Event occurs in respect of the other party; or the Customer becomes, or is deemed by TIMG to be, an unacceptable credit risk; or
b. The other party materially breaches this Agreement and fails to correct the breach within 14 calendar days after notice of that breach from the non-breaching party.
c. Without limiting the above, the following matters, may, at TIMG discretion, constitute a material breach of this Agreement by the Customer:
i. The Customer has breached agreed payment terms.
ii. Any warranty or representation given by the Customer to TIMG under this Agreement is materially false or misleading.
6.2. On termination or expiry of this Agreement, the Customer must:
a. Pay TIMG:
i. all Charges, including Charges incurred to the date of termination or expiry of the Agreement and any Charges which accrue from the date of termination or expiry; 8.4. The Customer acknowledges that TIMG has relied on information from the Customer as to the proposed period for which the Customer will require the Services in entering into this Agreement and setting the Charges. If the Customer terminates, or attempts to terminate, this Agreement during the Initial Term other than in accordance with this clause 8 or the Special Conditions, then the Customer agrees to pay to TIMG, by way of liquidated damages, a sum equal to 100% of the Charges that would have been payable to TIMG by the Customer for the unexpired portion of the Initial Term had the Customer continued to utilise the Services at the average rate incurred during the immediately preceding three months. Furthermore, the Customer acknowledges and agrees that the liquidated damages described in this clause 8.4 represent a genuine pre-estimate of loss.
7. CONFIDENTIALITY OF DATA
7.1. TIMG will take all reasonable measures to ensure that all Confidential Information held in connection with this Agreement is protected from misuse, unauthorised access, modification or disclosure.
7.2. The Customer will ensure that it has adequate processes in place for updating, amending or correcting Personal Information held by TIMG in connection with this Agreement.
8.1. To the extent permitted by law, all conditions and warranties not expressly included in this Agreement are excluded.
8.2. The Customer acknowledges that where it is acquiring the Services for business purposes, the provisions of the Consumer Guarantees Act 1993 are excluded.
8.3. TIMG is not liable for and the Customer releases TIMG from all liability in tort, contract, bailment or otherwise whether due to negligence, breach, wilful act or omission or any other cause in respect of any loss, damage, expense, injury or death arising out of or in connection with this Agreement.
8.4. To the extent permitted by law, and despite any other clause of this Agreement, TIMG is not liable for any indirect economic or consequential losses arising out of or in connection with this Agreement, including, but not limited to, any loss of profits resulting from information provided by MyChecks.
8.5. To the extent that TIMG’s liability cannot be limited in the manner provided in this clause 10, TIMG’s total aggregate liability under this Agreement whether relating to direct or indirect loss, (including liability due to negligence, breach or wilful act or default) for all claims arising out of or in connection with this Agreement in any Contract Period shall be limited to the amount which is equivalent to the sum of 12 months Charges paid by the Customer to TIMG that preceded the claim, or $10,000, whichever is the lesser.
8.6. Where any order, writ or mandatory instrument relating to the Services or the Records is served on or presented to TIMG and appears on its face to be duly and properly created and executed, TIMG may comply with it and the Customer indemnifies TIMG for any loss or expenses in respect of TIMG so complying.
8.7. The Customer is liable for and indemnifies TIMG in respect of all losses, of whatever nature, caused or contributed to by the Customer and incurred by TIMG in connection with the provision of the Services.
9.1. The Customer authorises TIMG to subcontract or assign the whole or any part of the provision of the Services.
9.2. TIMG will be responsible for the actions of its subcontractors in the provision of the Services and every right, exemption from liability and defence to which TIMG is entitled in accordance with this Agreement shall also be available and shall extend to protect all agents, employees, and subcontractors of TIMG.
9.3. No action, arising out of or in connection with this Agreement (other than an action by TIMG for any amount due to TIMG) may be brought more than one year after the cause of action first arose.
9.4. This Agreement will apply to the exclusion of all other Terms and Conditions provided to TIMG from time to time by the Customer which may be, without limitation, in the form of a purchase or work order. If the Customer provides TIMG with a purchase or work order containing Terms and Conditions, TIMG’s fulfilment of its obligations under this Agreement does not constitute acceptance of the Terms and Conditions of that purchase or work order.
9.5. This Agreement and any sub-schedules to this Agreement constitute the entire agreement between the parties and supersedes all previous oral or written proposals, representations, agreements and other communications between the parties in relation to the subject matter.
9.6. This Agreement may only be varied in writing by a document signed by a duly authorised officer of each party.
9.7. The failure by either party to observe or perform wholly or in part any obligation (other than an obligation to pay money) under this Agreement will not be a breach of this Agreement to the extent that the failure was caused by or arose as a result of a Force Majeure Event.
9.8. Any forbearance, indulgence or delay in enforcing any right or remedy by a party does not constitute a waiver of rights issued or in any way prejudice any right or remedy of that party.
9.9. If any part of this Agreement is unenforceable, invalid or void then that part of the Agreement is severed and the rights and obligations of the remaining parts of the Agreement continue to apply.
9.10. Any notice under this Agreement must be in writing and delivered personally, by facsimile or email, or by courier or prepaid post to the last known facsimile number, email address or address of the Customer.
10. DISPUTE RESOLUTION
10.1. If a dispute arises under this Agreement, a party may give written notice to the other specifying the dispute and requiring its resolution under this clause (Notice of Dispute).
10.2. If the dispute is not resolved within 14 days of the Notice of Dispute, the parties may jointly refer the dispute to mediation in accordance with this clause.
10.3. If the parties are unable to agree on a mediator within 21 days of the Notice of Dispute, the mediator shall be appointed by the Chair of LEADR (Leading Edge Alternative Dispute Resolvers).
10.4. The parties must pay the mediator’s fees in equal shares. Each party must pay its own costs of the mediation.
10.5. If the dispute is not resolved within 28 days after the appointment of the mediator, the parties shall be free to commence court proceedings.
10.6. This clause does not prevent any party from obtaining any injunctive, interlocutory or declarative relief from a court, which may be urgently required.
11.1. Software used in the provision of services may fall into the following categories (as detailed in the Services Agreement):
b. Owned by one or more third parties and licensed to TIMG; Accordingly, TIMG and the Customer agree that such third parties retain ownership of and title to such software products. The warranty and indemnification provisions set forth herein shall not apply to software products owned by third parties. TIMG and Customer intend and agree that such software product is being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “buyer” or similar or derivative words are understood and agreed to mean “licensee”. Right of the customer to use the software is dependent on payment to TIMG of fees for the use of this service, and terminates where TIMG services are discontinued, withdrawn or upon expiry of the agreement.
c. TIMG proprietary software; notwithstanding anything to the contrary contained herein, TIMG retains all rights and interest in software products provided hereunder. TIMG grants the Customer a royalty-free, non-exclusive, non-transferable licence, without power to sublicense, to use software provided hereunder solely for the Customer’s own internal business purposes in connection with the services provided by TIMG, on the hardware products provided hereunder and to use the related documentation solely for Customer’s own internal business purposes.
11.2. Customer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties software products and related documentation, unless clear title to such a right is held.
11.3. Customer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products owned by or licensed to TIMG.
11.4. This license terminates where TIMG services are discontinued, withdrawn or upon expiry of the agreement. TIMG will also be entitled to terminate this license of the Customer fails to comply with any term or condition herein.
11.5. The Customer agrees, upon termination of this license, immediately to return to TIMG all software products and related documentation owned by or licensed to TIMG and all copies and portions thereof.
12. INTELLECTUAL PROPERTY
12.1. Where TIMG provides web-based or electronic technology as part of the Services, that technology is provided for use by the Customer as a licensee on a non-exclusive basis, solely for the purposes of making use of the Services provided by TIMG, and otherwise in accordance with any agreement between TIMG and the Customer specific to the use of that particular technology.
12.2. The Customer acquires only the right to use the technology via the internet (or other telecommunications connection as agreed between the parties) but does not acquire any rights of ownership, unless otherwise specified and the conditions for transfer of title from TIMG or a third party have been met.
12.3. The parties acknowledge that property in all Intellectual Property which arises pursuant to or during the course of the performance of this Agreement and relating to the business of or products marketed by TIMG is vested and shall vest in TIMG and the Customer undertakes to do all such acts and things to execute all such documents as may be necessary or effective to vest such property in TIMG.
13. ASSIGNMENT AND CHANGES OF NAME
13.1. The Customer acknowledges that they may not transfer or assign any benefit or obligation under these Terms & Conditions to any third party without prior written consent from TIMG, which will not be unreasonably withheld.
13.2. The Customer will formally notify TIMG of any change of name prior to the change of name coming into effect.
13.3. TIMG may at law assign its rights under this Agreement to any party at any time.
14. GROUPING AND SET OFF
14.1. In the event that Customer has dealings with one or more subsidiaries of Freightways Limited (Freightways), the accounts of each of the Customer with each subsidiary of Freightways may be combined so that the debit and credit balances are set off and a net amount only is owed by the Customer (respectively) to members of the Freightways group, or to the Customer (respectively) by members of the Freightways group. This clause is for the benefit of the Supplier, Freightways, and each other subsidiary company of Freightways.
15. GOVERNING LAW
15.1. This Agreement is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.