1. Introduction
1.1 Application of terms: These are Nectar’s general terms and conditions of business. By requesting Products, Services and/or Customised Software to be provided by Nectar, you have agreed to be bound by the terms of the Agreement. You acknowledge that if any further Products, Services and/or Customised Software are requested, that these terms apply.
1.2 Authority: If you are ordering Products, Services and/or Customised Software on behalf of a company, you are representing that you have the requisite authority to enter into an agreement on behalf of that company.
2. Definitions and interpretation
2.1 Definitions: In these terms and conditions, unless the context otherwise requires, the following words have the following means:
Agreement means the agreement between you and us for the provision of particular Products, Services and/or Customised Software, which comprises these terms and conditions and either an Order Form or a Contract Document.
Commencement Date means the commencement date, start date, or delivery date specified in the applicable Order Form or Contract Document. If no such date is specified, the Commencement Date is the date we commence providing the applicable Products, Services and/or Customised Software to you.
Confidential Information means all information of a confidential nature directly or indirectly made available or exchanged between the parties to the Agreement, whether in paper form, electronically or orally, including through use of the Services or Products. Confidential Information includes any personal information provided or received, the terms of the Agreement, a party’s business information, employee, contractor and customer affairs.
Contract Document means the relevant CSP Agreement, MSSP Agreement or Service Level Agreement incorporating these terms. An Order Form is not a Contract Document for the purposes of these terms.
Customer (or you or your) means a business or individual who has purchased the Products and/or Services of Nectar.
Customised Software means software specifically developed for you by us.
Equipment means the computer hardware or other equipment specified in an Order Form or Contract Document.
Nectar (or we or our) means Nectar Limited (Company Number 4005578).
Network Support Services means the services which focus on the maintenance of the business network, as further specified in the applicable Order Form or a Contract Document.
Normal Working Hours means 8:00 am to 5.30 pm (New Zealand Standard Time (NZST)) Monday to Friday inclusive, excluding public holidays in Christchurch.
Order Form means a form provided by Nectar or otherwise approved by Nectar and used by you to request Services and/or Products.
Product means any Equipment and/or Software that we agree in writing to provide to you.
Service Site means each site specified in the applicable Order Form and/or Contract Document at which Services will be provided.
Services means the services specified in the applicable Order Form or Contract Document.
Software means any software developed or supplied by Nectar but does not include Customised Software.
2.2 Interpretation: In these terms and conditions, unless the context otherwise requires:
2.2.1 the headings are for convenience only and have no legal effect;
2.2.2 the singular includes the plural and vice versa;
2.2.3 “including” and similar words do not imply any limit; and
2.2.4 words denoting any gender include all genders;
2.2.5 monetary references refer to New Zealand dollars.
2.3 Precedence: If there is any conflict between the terms of the Agreement, the following order of precedence will apply:
2.3.1 any variation to the Agreement agreed in writing and signed by both parties;
2.3.2 any express terms in the Order Form or Contract Document; and
2.3.3 these terms and conditions.
3 How you engage Nectar to provide Services, Products or Customised Software
3.1 Order Form: Where you wish to order particular Services, Products or Customised Software from Nectar on an ad hoc basis (i.e. not under a Contract Document), you will submit a completed Order Form to us. If we agree to provide such Services, Products or Customised Software, we will confirm your order in writing (including by email).
3.2 Contract Document: Where these terms are incorporated into a Contract Document, then the applicable fully-executed Contract Document will constitute both parties’ agreement that Nectar will provide you with, and you will pay for, the particular Services, Products or Customised Software specified in the Contract Document.
3.3 Credit checks and referees: You will, upon request, provide Nectar with two or more referees who may disclose information to Nectar regarding your creditworthiness. You hereby authorise Nectar and its agents to seek, receive, and disclose information in relation to your creditworthiness from/to such referees and any third party credit rating agency.
4. Term
4.1 Order Form: Where we provide Services, Products or Customised Software under an Order Form (and not under a Contract Document), then the Agreement commences on the Commencement Date and, unless sooner terminated in accordance with these terms, continues until either party terminates the Agreement by giving not less than 30 days’ written notice of termination.
4.2 Contract Document:
4.2.1 Initial term: Subject to any contrary terms in the applicable Contract Document, where we provide Services, Products or Customised Software under a Contract Document, the Agreement commences on the Commencement Date and, unless sooner terminated in accordance with these terms, continues for an initial term of 12 months.
4.2.2 Notice to terminate: Before the date that is 90 days prior to expiry of the initial term (or applicable renewal term), either party may give notice to the other party to terminate the Agreement with effect on expiry of the then-current term.
4.2.3 Renewal and rolling monthly term: Subject to any contrary terms in the applicable Contract Document, if no notice of termination has been given in accordance with clause 4.2.2, then:
(a) the parties may agree in writing to renew the Agreement for a further period of 12 months, and subject to agreeing the revised charges, scope of Services, and other terms that will apply for that renewal term; or
(b) if no agreement is reached by expiry of the then-current term, then the Agreement will continue in force, at our then-current standard charges and rates, for rolling successive one month periods, until either party terminates the Agreement by giving not less than 30 days’ written notice of termination.
5. Price change and annual rates review
5.1 Periodic changes: Where we provide Services, Products or Customised Software under an Order Form (and not under a Contract Document), we reserve the right to alter the pricing structure for any Services at any time. We will inform you of any changes to any pricing structure by sending a letter or email. We will inform you of any proposed alteration to charges at least 30 days before any alteration is due to occur.
5.2 Annual review: Subject to any contrary terms in the applicable Contract Document, where we provide Services, Products or Customised Software under a Contract Document, we may annually review all rates for the provision of the Services will be on or around the anniversary of the Agreement (or at the start of the calendar year) and notify you of the updated rates. The rates may otherwise be adjusted on the written agreement of both parties.
6. Your responsibilities
6.1 General: It is your responsibility to ensure that:
6.1.1 any information you have given Nectar is correct and complete;
6.1.2 any directions given by us regarding the use of the Services are followed;
6.1.3 the Services are used for lawful purposes; and
6.1.4 any user of the Services complies with the Agreement. You are responsible for all users’ use of the Services. We have no responsibility or liability for the actions of any such user.
6.2 Network access: You must provide full access to the Network for Nectar’s representatives in order to affect the necessary monitoring and/or supplemental services, upon request by us.
7. Delivery of Services
7.1 General: Whenever Nectar provides Services to you, Nectar will:
7.1.1 use reasonable endeavours to provide the Services within any timeframes limit specified in the applicable Order Form and/or Contract Document, subject always to clause 7.2;
7.1.2 provide the Services with reasonable care and skill; and
7.1.3 use reasonable endeavours to provide Services that are reliable, although Nectar does not guarantee that any Services will be free of faults or will be continuous.
7.2 Timeframes: You acknowledge that any specified times are approximate only and time is not of the essence. You agree that Nectar will not be liable for failure to deliver or delay in delivery due to factors outside the reasonable control of Nectar.
7.3 Working hours: All Services and Products will be provided during Normal Working Hours, unless otherwise specified. However, we understand many businesses are working outside of Normal Working Hours and we are happy to help you if there is an issue and you request us to undertake after hours’ work. After hours’ work may incur a surcharge, as specified by us from time to time (including in the applicable Contract Document), and you agree to pay such surcharges upon invoice.
7.4 Subcontracting: We may from time to time subcontract provision of the Services to any third party, without further authorisation by you, and will remain responsible to you for performance of those Services.
7.5 Service issues: If there is anything concerning you about our Services, we request you give us the opportunity to rectify any service delivery issues by giving us notice of the issue and 10 working days to address it, unless otherwise agreed by both parties.
7.6 Business or domestic use: These terms apply to both the private and business use of the Products, Services and Customised Software. If the Services and/or Products are provided to you for the purpose of your business (as defined by the Consumer Guarantees Act 1993 (CGA)), then to the maximum extent permitted by law, the CGA will not apply to the Agreement or the supply of the Services and/or Products. However, If you are not acquiring these for the purpose of a business, then the CGA applies and nothing in these terms limits your rights under it.
7.7 Installation certificate: You may be required to sign an installation certificate when Products or Customised Software are installed by Nectar that indicates that the installation is complete.
7.8 Manufacturer warranty: You acknowledge that any manufacturer warranty for parts and labour/services are outside the scope of the Agreement, and we have no responsibility for any manufacturer warranty.
7.9 Intermittent faults: Because of the intermittent nature of many computer faults, it is often impossible to diagnose a fault other than by a series of replacements of different system components. The non-appearance of an intermittent fault during workshop testing does not necessarily mean that the fault has actually been fixed. A successful repair may therefore involve a long period with the machine being returned several times before the fault is finally eliminated. In many cases, the problem may lie with a change to the environment rather than an actual repair to the equipment. We will endeavour to eliminate the most likely reasons first and reserves the right to charge our time in that regard.
8. Contacting Nectar
8.1 Notification by you: Although we may monitor your Network (if doing so is expressly within the scope of the Network Support Services), we may not detect every issue therefore, we request you inform us of any issues as soon as possible. It is your responsibility to promptly notify Nectar of any events/incidents that could impact the Services and/or of any supplemental service needs.
8.2 Your representative: Where we provide Network Support Services, the Customer must designate a managerial level representative to authorise all Network Support Services. Whenever possible, your representative will be present whenever a Nectar service representative is on-site. You must inform Nectar of any changes made to this representation not less than thirty (30) days in advance.
9. Your payment obligations
9.1 General: You agree to pay the charges for Products, Services, and/or Customised Software calculated in accordance in the applicable Order Form and/or Contract Document. In particular, you agree:
9.1.1 to pay for the Products and/or Services and/or Customised Software regardless of who uses them;
9.1.2 to be invoiced by Nectar:
(a) in advance, at the start of the previous month, for agreed Services that have a fixed fee;
(b) no less frequently than on a monthly basis, in arrears, for the Services that have a variable fee, or as otherwise specified in the applicable Order Form and/or Contract Document; and
(c) on delivery of Products and/or Customised Software, or as otherwise specified in the applicable Order Form and/or Contract Document; and
9.1.3 to pay each invoice by the due date for payment that appears on the invoice.
9.2 Supplemental services: Any supplemental services provided by Nectar, which are outside the terms of the Agreement may be charged to the Customer as an additional charge. Any such additional charges will be invoiced by us at the end of each month. You agree to pay such invoices due date for payment that appears on the invoice.
9.3 Overdue amounts: If you have not paid all invoices in full by the due date for payment, Nectar reserves the right, at its sole discretion, to charge you a fee equivalent to 10% of the unpaid portion of your account. You agree to pay interest charges on overdue accounts and Nectar’s reasonable costs incurred in recovering outstanding amounts from you, including debt collection and legal fees.
9.4 Invoice dispute: In the event you have dispute about any of the charges appearing on an invoice, you must contact Nectar before the due date of payment and pay all amounts not in dispute by the due date. You are not required to pay the disputed part of the invoice while Nectar investigates the matter. If Nectar agrees that there has been a mistake, Nectar will adjust your next invoice or issue a credit note. If Nectar disagrees, then you are required to pay any outstanding amount immediately or, if the due date has not yet passed, by the due date.
9.5 Third party costs: The Agreement only covers Nectar’s service costs. We are not responsible for any costs charged third parties, including for Software and, unless otherwise specifically agreed in writing.
9.6 Suspension: If we have not received your payment in full by the due date, we may suspend provision of Products and/or Services until payment is received in full.
10. Intellectual Property Rights
10.1 General: In relation to the provision of any Products, Services and Customised Software by Nectar, you agree to the following:
10.1.1 All and any right, title and interest and all intellectual property rights (including copyright) in such Products, Services and Customised Software, including any images, animations, photographs, video, audio, music, text, applets, and accompanying materials, are our property (or the property of our licensors or suppliers). Nothing in these terms transfers ownership of such intellectual property rights.
10.1.2 To the extent that the Copyright Act 1994 does not vest copyright in any Products, Services or Customised Software (where not already owned by a third party) you hereby assign to us all right, title and interest in such Products, Services and Customised Software.
10.1.3 You will not challenge or attack the validity of, nor challenge, our rights in relation to the intellectual property referred to in these terms.
10.1.4 You will use any Software and/or Customised Software supplied by us in accordance with the documentation provided by is and only for the number of users permitted. You must inform us should you require any additional licenses and agree to pay all additional amounts applicable at the then-current rates.
10.2 Third party rights: You will not supply any property or introduce any information for use by us in relation to our provision of Products, Services, or Customised Software that would breach confidentiality or infringe the intellectual property rights of a third party. You agree to indemnify and hold us harmless from and against all losses, claims, or any expenses suffered by us as a result of any breach of this clause.
10.3 Customised Software: If the applicable Order Form and/or Contract Document specifies that we will provide Customised Software, then we will provide you with a non-exclusive, non-transferable licence to use the Customised Software on the following basis:
10.3.1 You will not copy any Customised Software (except for backup purposes) and you will not utilise the backup copy unless the original Customised Software is corrupted or loss occurs.
10.3.2 You are not entitled to resell or transfer any Customised Software.
10.3.3 You will not reverse engineer, disassemble, decompile, modify, adapt, or otherwise attempt to discover the source code of any Customised Software.
10.3.4 You are not entitled to assign, rent, lease or lend any Customised Software without our prior written consent.
10.3.5 Any Customised Software labelled as an “upgrade” (or similar) replaces and/or supplements and may disable the original software provided by Nectar that formed the basis of the upgrade. Any upgraded software is subject to these terms.
11. Confidentiality
11.1 General: Each party will:
11.1.1 use commercially reasonable efforts to ensure that all information, including plans, reports, opinions, projections and network recommendations contained in any document or electronic storage system, that includes Confidential Information is kept strictly confidential;
11.1.2 not use Confidential Information of the other party for any purpose other than the purpose for which the Confidential Information was disclosed;
11.1.3 not give Confidential Information, or allow Confidential Information to be received, by any person who is under a duty to communicate this information to another person; and
11.1.4 will take reasonable care to ensure that all materials in its possession that contain Confidential Information are kept secure.
11.2 Return: Each party agrees to return to the other party on demand, all Confidential Information of the other party in whatever form (including all copies) that is in the first party’s control.
12. Personal Information
12.1 Collection and use: If you provide any personal information to Nectar, you are responsible for obtaining all necessary consents and authorisations from individuals to enable Nectar to access, collect, retain and use any personal information for the purpose of supplying Services to you and for statistical analysis, research and marketing purposes. In so far as Nectar holds any personal information supplied by you, Nectar will do so as your agent in accordance with the Privacy Act 2020 and our Privacy Statement located at https://nectargroup.co.nz/privacy-statement/.
12.2 Access and correction: We recognise that under the Privacy Act 2020 you may request access to and require correction of your personal information held by us. You agree to make any such request in writing and we reserve the right to charge a fee for any reasonable costs incurred in responding to your requests (any costs will be disclosed for your acceptance before they are incurred).
13. Warranties
13.1 Services:
13.1.1 Nectar warrants that the Services will be provided as defined in the applicable Order Form and/or Contract Document, but Nectar will not be responsible for the compatibility of any Products with other products unless Nectar has expressly agreed otherwise in writing.
13.1.2 Nectar warrants that all Services will be provided in a careful and skilled manner.
Nectar will not be responsible for any failure of the Services (and the foregoing warranties will not apply) if the failure is a direct or indirect result any software or hardware we did not supply failing to operate correctly.
13.2 Claim under Services warranty: In the event you notify us of a breach of any applicable warranty in clause 13.1, our sole obligation is to correct any issues arising out of the negligent supply of any Services originally specified in the applicable Order Form and/or Contract Document, within a reasonable time.
13.3 Hardware: The warranty period for hardware supplied by Nectar is three months or the period of the manufacturer’s warranty, whichever period is greater. Nectar warrants, for the applicable warranty period only, that all hardware products supplied to business customers will perform in accordance with the specifications supplied by Nectar, except:
13.1.1 where those products have been advertised as having no warranty; or
13.1.2 the faults are intermittent.
13.4 Claim under hardware warranty: When a valid warranty claim is accepted under this clause, Nectar will repair or replace the hardware product at Nectar’s discretion. The manufacturer’s warranty does not cover Nectar’s associated labour charges or freight costs, so you are responsible for paying all such costs, upon invoice by us (or the manufacturer, as the case may be).
13.5 Exclusion of Warranties: To the maximum extent permitted by law, except for express warranties in these terms and conditions and/or the applicable Order Form and/or Contract Document, any other warranties, conditions, representations or guarantees whether implied by statute, common law, or custom of the trade or otherwise, including implied warranties, guarantees or conditions of merchantability and/or fitness for a particular purpose, are excluded.
14. Insurance
14.1 Nectar will hold commercial general liability insurance for personal injury and property damage for a general aggregate of $1,000,000. At the Customer’s request, Nectar further agrees to furnish the Customer with certificates evidencing such coverage.
15. Limitation of Liability
15.1 No liability except for breach: To the maximum extent permitted by law, Nectar has no liability to you except for Nectar’s breach of the Agreement, irrespective of whether such liability arises in contract, tort (including negligence), or otherwise.
15.2 Exclusions: Where Nectar is liable to you, in no event will Nectar be liable for any indirect, special, incidental, consequential or punitive loss or damage. Without limiting the foregoing exclusions, Nectar has and will have no liability:
15.2.1 loss of use of the Network or for any other liability arising from alterations, additions, adjustments or repairs which have been made to the Network other than by authorised representatives of Nectar;
15.2.2 for any loss or corruption of information, loss or corruption of data, the cost of recovering such data or information;
15.2.3 for any loss of profits, savings, goodwill, business or anticipated business, or reputational damage;
15.2.4 for any business interruption or other pecuniary loss; or
15.2.5 arising from use of, reliance on, or inability to use or rely on, the Service, or from any failure by you to comply with the Agreement.
Limitation: To the maximum extent permitted by law, where Nectar is liable to you, the maximum aggregate liability of Nectar is limited in respect of any one incident, or series of connected incidents, to the amounts paid by you for the affected Services and/or Products and/or Customised Software in the six months immediately preceding the most recent incident giving rise to liability.
16. Health and Safety
16.1 Your responsibilities: To help us do our job effectively, you’ll make sure we have site access, the working environment is safe, and your information and communications technology equipment is appropriate and safe.
16.2 Site safely: We have to make sure our staff are kept safe. Please advise Nectar of any safety requirements or training to be undertaken prior to onsite work commencing. Our staff will use reasonable endeavours to abide by the safety policies and undertake any required training in order to be safe on site.
16.3 Suspension: We reserve the right to suspend provision of Services or Products if, in our sole discretion, we consider conditions at a Service Site pose a health or safety threat to any Nectar personnel or representative.
17. Network and Service Sites
17.1 Network:
17.1.1 The Network is eligible for monitoring and support under the Agreement provided that the Network satisfies Nectar’s serviceability requirements and site environmental conditions, as determined by Nectar from time to time.
17.1.2 Nectar reserves the right to inspect the Network on or around the Commencement Date for the purpose of creating a diagram of the Network and/or conducting a diagnostic test of the Network. Unless stated otherwise, such inspection will be charged using our standard hourly billing rates.
17.2 Service Sites: We are obligated to provide Services and/or Products at the specified Service Sites only. If the Customer desires to relocate, add or remove locations, the Customer will give appropriate notice to Nectar of its intention to relocate, not less than sixty (60) days in advance. Nectar reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by the Customer. Such right includes the right to refuse to provide service to Network at the relocation and/or new site.
18. Termination
18.1 General: The Agreement may be terminated in accordance with either clause 4.1 or 4.2 (if such clause applies to the Agreement).
18.2 Termination for cause: Either party may terminate the Agreement under any of the following conditions:
18.2.1 a breach of the Agreement that is not remedied within 7 days after the other party receives notice identifying the breach and requiring it to be remedied, where that breach is remediable;
18.2.2 a breach of the Agreement by the other party that is not capable of remedy;
18.2.3 the other party is, becomes, or is deemed to be, insolvent or bankrupt;
18.2.4 the other party makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors;
18.2.5 the other party goes into receivership or has a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property; or
18.2.6 any resolution is passed, or any proceeding is commenced, for the winding up or liquidation of the other party (other than for the purposes of a solvent reconstruction).
18.3 Consequences of termination: On termination or expiry of the Agreement:
18.3.1 you remain liable for, and must pay within 10 days of termination/expiry, any accrued amounts which become due for payment before or after termination/expiry;
18.3.2 if we have installed any hardware and/or software that was required to conduct network support services, you must within 10 days of termination/expiry return to us any such hardware and uninstall any such software;
18.3.3 you will return or destroy all copies of any Customised Software, at our request; and
18.3.4 each party preserves any rights and obligations that accrued up to and including the date of termination or expiry.
19. General Provisions
19.1 Entire agreement: The Agreement constitutes the entire and only understanding and agreement between the parties with respect to its subject matter and, except as expressly set out in the Agreement, may be amended only in a writing and signed on behalf of each of the parties.
19.2 Severability: If a court of competent jurisdiction determines that any terms or provisions of the Agreement are invalid or unenforceable, such determination will not affect the validity or enforceability of the remaining terms of the Agreement, which will continue to be given full force and effect.
19.3 Binding effect: The Agreement will be binding upon, and will inure to the benefit of, the parties hereto and their heirs, legal representatives, personal representatives, administrators, successors, and permitted assignees.
19.4 Waiver: Any failure of either party to comply with any obligation, covenant, agreement, or condition in the Agreement may be expressly waived, but only if such waiver is in writing and signed by the other parties. Any such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or conditions will not operate as a waiver of and/or set precedence with respect to any subsequent and/or other failures.
19.5 Governing law: The Agreement is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any claims and disputes relating to the Agreement.
19.6 Assignment: You may not assign, pledge or transfer any rights, duties or obligations in the Agreement to any other person except with our prior written consent. We may assign or novate the Agreement to any entity that acquires all or any part of our business or assets.
19.7 Force Majeure: We will not be liable for any problems caused by factors outside our reasonable control including terrorist acts, natural catastrophe, fire, flood, or other act of God, and/or power failure, virus propagation, or Network issues.
19.8 Legal fees: In any action between the parties to enforce any of the terms of the Agreement, the prevailing party will be entitled to recover all expenses, including reasonable legal fees.
