Kinetics Group Limited (“Kinetics”) agrees to provide Products, Services and Customised Software to the Customer on the following terms and conditions. Every request for Products, Services and Customised Software shall be made on an Order Form, which on acceptance by Kinetics shall form a separate contract between the parties comprising these terms and conditions and the Order Form.
In these terms and conditions, references to “us”, “our” and “we” are references to Kinetics, and references to “you” and “your” are references to you.
“Confidential Information” means any information, whether this information is relevant or not, which is disclosed by Kinetics to you or of which you become aware of directly or indirectly that relates to the provision of the Services by Kinetics.
“Customised Software” means software specifically developed for you.
“Equipment” means the computer hardware or other equipment specified in an Order Form.
“Normal Working Hours” means 8:00 am to 5.30pm Monday to Friday inclusive, excluding public holidays in Auckland.
“Order Form” means a form provided by Kinetics or otherwise approved by Kinetics and used by you to request Services.
“Products” means the Equipment and the Software.
“ Services” means the services specified in the Order Form, including project management, quality assurance, network and system design, system audits, & engineering services.
“Use” means install, run, access, display or otherwise interact with software, on a single computer, workstation, terminal or other electronic device.
“Software” means any software developed or supplied by Kinetics but does not include Customised Software.
2.1 By requesting Products, Services and/or Customised Software to be provided by Kinetics, you have agreed to be bound by the following terms and conditions. You acknowledge that if any further Products, Services and/or Customised Software are requested, that these terms and conditions apply.
2.2 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 the company.
3.1 Unless otherwise agreed or specified in the Order Form, the term of any contract between the parties will continue until written notification is received from either party indicating otherwise. Each party agrees to give 30 days notice to the other party. For the avoidance of doubt, this clause does not affect the provisions that relate to a breach of any of these terms and conditions.
4.0 BUSINESS AND DOMESTIC USE
4.1 These terms and conditions apply to both the private and business use of the Products, Services and Customised Software. If you are not acquiring these for the purpose of a business (as defined by the Consumer Guarantees Act 1993) then that Act applies and nothing in these terms and conditions limits your rights under it.
5.0 KINETICS' COMMITMENT TO YOU
5.1 Whenever Kinetics provides Services to you Kinetics is committed to:
(a) providing the Services within a reasonable time or within the time limit specified in the Order Form;
(b) providing the Services with reasonable care and skill;
(c) providing Services that are reliable although Kinetics does not guarantee that any Services will be free of faults or will be continuous.
6.0 YOUR RESPONSIBILITIES TO KINETICS
6.1 Whenever Kinetics provides Services to you, it is your responsibility to ensure that:
(a) any information you have given Kinetics is correct and complete;
(b) any directions given regarding the use of the Services are followed;
(c) the Services are used for lawful purposes; and
(d) any user of the Services complies with these terms and conditions.
7.0 DELIVERY OF SERVICES
7.1 Kinetics will make genuine reasonable commercial efforts to supply the Services specified in any Order Form. You acknowledge that any specified times are approximate and time is deemed not to be of the essence. You agree that Kinetics will not be liable for failure to deliver or delay in delivery due to factors outside the reasonable control of Kinetics.
8.0 PAYMENT OBLIGATIONS
8.1 In return for the provision of our Services, you agree to pay the charges specified in the Order Form. In particular you agree as follows:
(a) You agree to pay for the Services regardless of who uses them;
(b) You will be billed for Kinetics' charges no less frequently than on a monthly basis for the Services for the previous month unless agreed in writing by both parties that payment will be due on completion of the work undertaken by Kinetics. You are required to pay your bill by the due date for payment that appears on the bill;
(c) Should you dispute any of the charges appearing on your bill, please contact Kinetics before the due date of payment. You will not be required to pay the queried part of the bill while Kinetics investigates this matter. If Kinetics agrees that there has been a mistake, Kinetics will adjust your next bill or issue a credit note. If the due date for payment has already passed then you will be required to pay any outstanding amount immediately; and
(d) If your have not paid your account by the due date, Kinetics 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 Kinetics reasonable costs incurred in recovering outstanding amounts from you, including debt collection and legal fees.
8.2 Pricing Structure Alterations
Unless otherwise agreed in writing, Kinetics reserves the right to alter the pricing structure for any Services. Kinetics will inform you of any changes to any pricing structure by sending a letter or by any other appropriate means. Kinetics will inform you of any proposed alteration to prices at least 30 days before any alteration is due to occur.
9.0 PROVISION OF EQUIPMENT
Unless otherwise agreed by the parties in writing, during the delivery of any Equipment and while the Equipment and any of your own equipment or software is held on your behalf by Kinetics, you shall bear the risk of and you agree to carry adequate insurance against any loss or damage to the Equipment and to any of your own equipment and/or software (as the case may be), regardless of whether you have paid for the Equipment.
If the consent of your landlord is required for the installation of any Equipment, you will obtain this consent before installation occurs.
9.3 Reservation of Title
You agree that no legal or equitable title in any Equipment will pass to you until payment in full is received by Kinetics for that Equipment.
9.4 Payment by a Third Party for Equipment
If you receive payment from a third party for any Equipment provided by Kinetics, you agree that this payment belongs to Kinetics and that you are holding any sum received in trust for Kinetics. You agree to inform Kinetics that any such payment has been received and ensure payment to Kinetics of this amount is effected immediately.
9.5 Recovery of Equipment
You agree that failure to pay for any Equipment provided by Kinetics will entitle Kinetics, at any time, to recover and retake possession of the Equipment and to exercise all its rights as owner and/or unpaid seller. You also agree that you irrevocably authorise and license Kinetics and its servants or agents to enter any land or building where the Equipment is installed for the purpose of either inspecting the Equipment and/or repossessing it.
9.6 Your Responsibilities in Relation to Equipment
You will be responsible for any loss, damage and deterioration of the Equipment provided by Kinetics due to any cause whatsoever after the Equipment has been delivered. For the avoidance of doubt, this clause in no way affects your insurance obligations as outlined in clause 9.1.
10. SOFTWARE RELATED SERVICES
10.1 Kinetics will provide you with a non-exclusive, non transferable licence to use the Customised Software on the following basis:
(a) You will use the software supplied by Kinetics in accordance with the documentation provided by Kinetics and only for the number of users permitted and will inform Kinetics should you require any additional licences;
(b) You will not copy any Customised Software and you will not utilise the back up copy unless the original Customised Software is corrupted or loss occurs;
(c) You are not entitled to resell or transfer any Customised Software;
(d) You will not reverse engineer, disassemble, decompile, modify, adapt, or otherwise attempt to discover the source code of any Customised Software;
(e) You are not entitled to assign, rent, lease or lend any Customised Software without the prior written consent of Kinetics;
(f) You will return all copies of any Customised Software or destroy copies of any Customised Software should you be required to do so for either not complying with these terms or conditions or due to termination occurring;
(g) Any Customised Software labelled as an upgrade replaces and/or supplements and may disable the original software provided by Kinetics that formed the basis of the upgrade. Any upgraded software is subject to these terms and conditions; and
(h) In conjunction with section 10.1(a) you acknowledge that all title in the Customised Software(including but not limited to any images, animations, photographs, video, audio, music, text and applets) and any accompanying materials and copies accessed through this material, is and shall remain the property of Kinetics.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 In relation to the provision of any Products, Services and Customised Software by Kinetics, you agree to the following:
(a) All and any right, title and interest and all intellectual property rights (including without limitation copyright) in such Products, Services and Customised Software will be and remain the property of Kinetics or its licensors or suppliers. 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 Kinetics all right, title and interest in such Products, Services and Customised Software;
(b) You agree not to challenge or attack the validity of, nor challenge the rights of Kinetics in relation to the intellectual property referred to in clause 11.1(a) as being the property of Kinetics; and
(c) You will not supply any property or introduce any information for use by Kinetics in relation to the provision by Kinetics 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 Kinetics harmless against all losses, claims, or any expenses suffered by Kinetics as a result of any breach of this clause 11.1(c).
12. CONFIDENTIAL INFORMATION
12.1 Each party will:
(a) ensure that all information, including but not limited to plans, reports, opinions, projections and network recommendations contained in any document or electronic storage system which includes Confidential Information is kept strictly confidential and neither party will use the contents in any way other than for the purpose for which the information was disclosed;
(b) 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
(c) not use Confidential Information for any purpose other than that for which it was provided. If uncertain you agree to obtain permission from Kinetics. .
12.2 Each party agrees to return to the other party on demand, all Confidential Information in whatever form (including all copies) that is in the former party’s control.
12.3 Each party shall take all reasonable care to ensure that all materials in its possession that contain confidential information are kept secure.
13. USE OF PERSONAL INFORMATION
13.1 (a) If you are an individual, you authorise Kinetics and its agents to collect information about you to be held at Kinetics’ head office. You agree that this information can be used for statistical analysis, research and Kinetics' marketing purposes. You also authorise Kinetics and its agents to seek, supply and disclose information in relation to your credit-worthiness;
(b) Kinetics recognises that under the Privacy Act 1993 you can request access and require correction of your personal information. Any such request must be written and Kinetics reserves 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).
14.1 Kinetics warrants that the Services will be provided as defined in the Order Form but Kinetics will not be responsible for the compatibility of any Products with other products unless Kinetics has expressly agreed otherwise in writing. Kinetics will not be responsible for any failure of the Services if the failure is a direct or indirect result of the inability of your software or hardware to operate correctly.
14.2 Kinetics warrants that all Services will be provided in a careful and skilled manner.
14.3 Subject to clauses 14.1 and 14.2, Kinetics’ sole warranty is to correct any errors arising out of the negligent supply of any Services, within a reasonable time. Kinetics liability under this warranty shall be limited to the Services originally specified in the Order Form.
14.4 You may be required to sign an installation certificate when Products or Customised Software are installed by Kinetics that indicates that the installation is complete.
15. LIMITATION OF LIABILITY
15.1 In no event will Kinetics be responsible for any consequential, incidental, indirect or special damages whatsoever, including but not limited to any damages for the loss of business profits, loss of business information, business interruption or other pecuniary loss, even if Kinetics has been advised of the possibility of such damages.
15.2 Kinetics’ maximum liability under any contract formed (which contract comprises an Order Form and these terms and conditions) shall be the amount payable for the Products, Services or Customised Software specified in the Order Form the subject of that contract.
16. GOVERNING LAW AND JURISDICTION
These terms and conditions are governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand. You agree that if any part of these terms and conditions is found to be void and unenforceable, it will not affect the validity of the balance of these terms and conditions.
17.1 Without prejudice to any other rights, Kinetics reserves the right to:
(a) Terminate any Services provided to you immediately, if you have failed to comply with these terms and conditions; or
(b) Stop providing Services to you due to your failure to meet your obligations for payment.
18. FORCE MAJEUERE
Kinetics will not be liable for any failure or omission to provide any Services due to any cause reasonably outside the control of Kinetics.