Optimus Systems Limited Terms and Conditions of Trade
Effective from 1 May 2023.
Introduction
The Terms of Trade below govern all supplies of Products and Services from Optimus Systems Limited ("Optimus Systems", "we", "us") to the customer ("you"). They replace all earlier Optimus Systems terms of trade and any conditions in any document used by you that purports to have contractual effect. Your acceptance of any Products and Services from Optimus Systems indicates your acceptance of these Terms of Trade.
1. General
1.1 In these conditions:
- Software includes all relevant documentation, manuals, printed and written matter.
- Supplier means Optimus Systems suppliers.
- Products means computer hardware and their components, peripherals, accessories, software and other goods or services of any kind which are supplied by Optimus Systems to you.
- Website means any internet website owned and operated by Optimus Systems.
2. Price and Orders
2.1 Prices may be altered by Optimus Systems provided we give you no less than 60 days written notice.
2.2 Prices on quotes or proposals are exclusive of any taxes unless expressly specified otherwise.
2.3 Optimus Systems reserves the right to refuse to accept any order (or any part of an order) or to deliver Products by instalments. Each instalment will comprise a separate contract and shall be paid for as if it were a separate order.
3. Risk and Delivery
3.1 While you are in possession of the Products, you are responsible for the insurance and risk in such Products from the time they are received by a carrier for delivery to you, or collected by you or your agent.
3.2 You agree to pay all delivery costs.
3.3 All claims for shortage or damage during delivery must be made to the carrier within 7 days of the date of delivery. Where goods appear to be damaged or missing you must contact the carrier and us immediately.
3.4 We will make every effort to ensure delivery of Products, or performance of services, is on time, but will not be liable to you for any loss or damage arising in any way from any delay in delivery or performance. Delay does not entitle you to cancel any order.
3.5 Where you ask us to deliver Products directly to another person’s address, any liability for the Products passes to you once the Products are left at that address. You acknowledge that you will remain directly responsible to us under these terms of trade.
4. ID Check, Credit References and Provision of Related Services
4.1 You authorise us to check your identity (by obtaining a Driver Check from NZTA), and your credit status with any credit reference agency as we see fit from time to time, and to pass on credit information about you to any credit reference agency at any time. If you are not satisfied with the information about you which we receive from any credit reference agency, you must deal directly with the credit reference agency.
4.2 If you do not give us the names of any credit referees when we ask for them, or we are dissatisfied with the information regarding your credit status, we can decline your application or terminate your services with Optimus Systems Ltd effective immediately. In this case, you will be responsible for any costs we have incurred to obtain the credit check.
4.3 We may ask for a security deposit and/or impose other conditions upon approving your application. These may include (but are not limited to) a mandatory payment method or credit limit.
4.4 When you ask for any additional Services (e.g. hardware, additional subscriptions), we can ask for further credit referee(s) and/or a security deposit for that service and may also impose a credit limit.
4.5 We may decline your application (and/or any request for additional services or products) or provide a restricted Service at our discretion and we do not have to disclose our credit criteria or the reasons for our decision.
5. Payment
5.1 Unless we have agreed in writing to extend credit to you, you must pay in cash or by credit card before supply. We have sole discretion to determine the amount of credit we will extend to you at any time.
5.2 Where we have agreed in writing to extend credit to you, you must pay in full within 7 days of supply, or (only if we have agreed in writing) by the 20th of the month following the dispatch of an invoice. Your payment is made only when funds have fully cleared into our bank account.
5.3 Where accounts have not been paid in full in accordance with any credit terms we have extended to you, we reserve the right to cancel any discounts (including any agreement for discounted labour rates), and instead charge you at our normal labour rate for all past and future Products supplied to you.
5.4 Accounts with no transactional history after a period of 6 months will revert to our normal labour rate.
5.5 You agree to pay for the Products in full without deduction or set-off and to pay GST and any other government duties, levies or taxes in respect of the Products.
5.6 If you wish to dispute an invoice, you must notify us in writing within 14 days of the date of the invoice and provide details of the dispute. You may withhold payment of the disputed part of an invoice only and must pay that part (or any amount subsequently agreed or determined to be the correct amount owing) promptly on resolution of the dispute. The parties will use their best endeavours to resolve the dispute no later than 60 days from invoice date in accordance with this clause.
5.7 Between the due date and the date payment is received in full we are entitled to charge you either:
- interest on the unpaid overdue balance at 4% per annum above the current unapproved overdraft rate charged by ASB Bank, or
- a monthly $20 administration fee,
whichever is greater.
Overdue charges will compound monthly on the unpaid balance owing on the first day of each month. We may also charge you debt collection costs (including legal costs on a solicitor-client basis) and suspend delivery of further Products until all amounts owing to us are paid in full. Disputed invoices as per clause 5.6 are excluded from this clause.
5.8 Notwithstanding any other clauses in these terms of trade, all payments shall immediately become due to us if any of the events in this clause occur (including refusal to accept delivery, incorrect credit information, unauthorised disposal of unpaid Products, insolvency, appointment of a receiver/liquidator/statutory manager, arrangement with creditors, or failure to comply with clause 6).
6. Customer Data
6.1 Subject to clause 6.2, we will access Customer Data only in the course of providing the agreed Service to you.
6.2 We will only access and disclose Customer Data to law enforcement or government authorities to the extent required by law. If a request is made, we will redirect the request to you, or if redirection is not permitted or feasible in the available time frame and unless legally prohibited from doing so, we will notify you as soon as practically possible.
6.3 You will, as and to the extent required by law, notify individual users that their data may be disclosed to law enforcement or other government authorities, and obtain consent from individual users to the potential for disclosure under this clause.
7. Customer Obligations
7.1 You will:
7.1.1 make available to us in a timely manner (and in accordance with any agreed timeframes) all assistance, including personnel, information, services and equipment reasonably required by us; and
7.1.2 provide us with such access to your systems as reasonably required by us.
8. Property
8.1 With the exception of Software which is subject to licence, ownership in Products (whether in their original form or incorporated in or attached to another Product) will not pass to you but will remain with us until we receive payment in full of the purchase price of the Products and all other amounts that you owe to us for any reason.
8.2 Until property passes to you, you shall hold any Products in trust as fiduciary bailee for us and/or the Software licensor, and store them in a manner to enable them to be identified and cross referenced to particular invoices.
9. Security Interests
9.1 You agree that you will on request provide us all information and do all acts necessary (including signing a general security agreement) for us to register a financing statement or purchase money security interest over the Products or their proceeds pursuant to the Personal Property Securities Act 1999, and that you will advise us immediately in writing of any changes to that information.
9.2 You agree that you will supply us, within 10 business days of our written request, with copies of all security interests registered over your personal property, and you authorise us as your agent to request information from any secured party relating to any security interest held in any personal property which is or has been in your possession or control.
9.3 You agree that we may require you to pay all reasonable costs (including legal costs on a solicitor-client basis) associated with the discharge or amendment of any financing statement registered by us, whether or not the change was initiated by you.
9.4 If we repossess goods under this agreement, we may retain those goods or dispose of them without notice or statement of account to you or any other person, and, after deducting reasonable costs of sale, we may credit any surplus by way of set-off against any sums owing to us. We will not be obliged to re-supply any repossessed inventory.
9.5 You authorise third parties to provide all personal information about you or associated entities.
10. Returns
10.1 You acknowledge and agree that returned Products shall only be accepted by us in accordance with our returns policy as notified to you from time to time. If no returns policy has been notified to you we will only allow credits for returns at our complete discretion.
11. Warranties
11.1 Goods are subject to the manufacturers’ warranties only. We will pass on the benefit of those warranties to you, without being directly liable to you under any warranty.
11.2 Where goods are subject to a return-to-base warranty, you are responsible for returning them to us or the manufacturer (as provided by the warranty) and you may be responsible for additional costs (including freight).
11.3 If you require us to replace the goods under manufacturers’ warranties, we will charge you at our standard service rate per hour plus relevant travel time incurred.
11.4 Any warranty may be voided by damage to or misuse of the system, problems caused by the use or misuse of software, negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorised repairs, modifications, or the addition of incompatible hardware.
12. Obligations to Suppliers
12.1 We may impose certain conditions on you from time to time where our suppliers require us to do so. We agree to give you 10 business days’ prior written notice before such conditions are imposed.
12.2 You agree that any obligations to third parties we incur as part of providing Products to you will be passed on to you. You authorise us to accept terms and conditions from third parties on your behalf.
13. Limitation of Liability
13.1 You acknowledge that because you are acquiring the Products for business purposes, the Consumer Guarantees Act 1993 (CGA) shall not apply, and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or implied by common law will not apply and are excluded.
13.2 Optimus Systems maximum liability to you in any case shall be limited to the value of any faulty Products supplied.
13.3 Optimus Systems and its employees, contractors and agents, any manufacturers of the Products and any licensors of Software or Suppliers, will not be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This includes (without limitation) costs (including return costs), consequential loss, loss of profits, and damage arising from delays, faulty or delayed installation, unreasonable use, negligence, faulty specifications and design, and faulty materials/components/manufacture/compilation/assembly.
13.4 We will not be liable to you for any losses caused by events beyond our reasonable control, and we are not required to settle a strike, lockout or other industrial disturbance against our wishes to benefit from this clause.
14. Your Further Obligations
14.1 Where you purchase Products from us for re-supply as, or incorporation into, goods or services ordinarily acquired for personal household or domestic use or consumption ("Consumer Products"), you warrant that you will contract out of CGA liability appropriately in the supply chain (as set out in this clause) and indemnify us and our Suppliers for failures to do so.
14.2 You indemnify us against all costs (including legal costs on a solicitor and own client basis) expenses, losses, damages or claims arising in any way as a result of your failure to comply with any part of these terms of trade.
15. Intellectual Property and Confidentiality
15.1 All intellectual property shall remain the property of Optimus Systems or any Supplier entitled to it, and neither Optimus Systems nor its Suppliers transfer any right, title or interest in the intellectual property to you.
15.2 You must not use any words or marks similar to trademarks which are the property of Optimus Systems or its Suppliers, except to the extent authorised by Optimus Systems in writing.
15.3 You agree to dispatch the Products only under the trade marks under which they are supplied by Optimus Systems, and you must not apply those trade marks to any product which is not a genuine branded product supplied to you by Optimus Systems.
15.4 You must not cause or permit anything which may interfere with, damage or endanger the trademarks or other intellectual property rights of Optimus Systems or its Suppliers, or assist or allow others to do so.
15.5 You must advise Optimus Systems immediately when you become aware of any unauthorised use or attempted use of Optimus Systems or its Suppliers’ trademarks or other intellectual property rights.
15.6 If your account with Optimus Systems is terminated, you must immediately discontinue use of any trademarks that are the property of Optimus Systems.
15.7 You agree to ensure that all Confidential Information given by Optimus Systems to you is made available to your employees only on the basis that those employees at all times maintain strict confidentiality.
15.8 Clause 15 survives termination of the Agreement.
16. Subscription Services
16.1 Application of the standard terms relating to subscribed services
16.1.1 A person or company that accepts an order from Optimus Systems for the provision of services ("Subscribed Services") enters into a binding legal agreement with Optimus Systems ("User Agreement") which consists of:
- the order;
- these Terms and Conditions of Trade; and
- the Service Level Agreement (available upon request).
16.1.2 By accepting the order, the Customer agrees to be bound by the User Agreement.
16.2 Interpretation of Subscription Services
16.2.1 In the User Agreement, unless the context requires otherwise:
- the singular includes the plural and vice versa;
- references to any gender include all other genders;
- references to statutes are to those statutes as in force from time to time;
- "includes" means "includes but is not limited to";
- where one part of speech of a word is defined, other parts have corresponding meanings;
- references to NZ$/$NZ/dollar/$ are to New Zealand currency;
- if a due date falls on a non-business day, it moves to the next business day;
- headings are for ease of reference only.
16.3 Provision of Subscribed Services
16.3.1 Optimus Systems services are provided only to Customers 18 years and above.
16.3.2 We will commence supplying Subscribed Services within 7 days of the date of first payment unless otherwise agreed.
16.3.3 We will continue to provide Subscribed Services unless suspended under 16.8 or until terminated under 16.10.
16.3.4 We will provide identification and log-in information necessary for access and use of Subscribed Services.
16.4 Charges
16.4.1 Subscription Charges are calculated according to the billing option and pricing structure selected.
16.4.2 Subscription Charges not prepaid will be invoiced monthly.
16.4.3 Subscription Charges are exclusive of Taxes (other than income tax). GST and other Taxes imposed on Optimus Systems shall be added and paid in accordance with 16.5.
16.4.4 The Customer is liable for all Subscription Charges accessed through the Customer’s credentials whether authorised or not, other than unauthorised access resulting from Optimus Systems negligence or wrongful conduct.
16.4.5 Subscription Charges may be modified in accordance with 16.12.
16.5 Payment of Subscribed Services
16.5.1 Subscribed Services are prepaid. The Customer must pay Subscription Charges by the due date to receive Subscribed Services.
16.5.2 We are not required to refund any prepaid Subscription Charges and will only do so at our discretion pursuant to 16.8.1.4 and 16.10.
16.5.3 Customer Accounts more than 30 days in arrears may be referred to a debt collection agency without further notice.
16.5.4 The Customer must pay on demand any expenses incurred due to failure to pay by the due date, including debt collection fees and legal costs on an indemnity basis.
16.5.5 If the Customer disputes Subscription Charges, the Customer must notify us in writing within 14 days of the due date and provide details. The Customer may withhold payment of the disputed part only and must pay the correct amount promptly once resolved.
16.5.6 The Customer must pay the disputed amount within 60 days of the due date unless the dispute is resolved or referred to a court/tribunal/body with authority.
16.6 Use of Subscribed Services
16.6.1 The Customer is responsible at its own expense for equipment and connections needed.
16.6.2 The Customer must comply with all laws and all reasonable directions and policies we notify.
16.6.3 Where hosting incorporates third-party material, the Customer must obtain authorisations needed for us to use/reproduce it as required.
16.6.4 The Customer must ensure users do not use Subscribed Services for the prohibited purposes listed in this clause (including IP infringement, obscene/defamatory/threatening material, illegal activity, pornography sales, prohibited linking, disruption/viruses, unauthorised access, and anonymity software that prevents legal compliance).
16.6.5 The Customer must take reasonable steps to prevent security breach/attack originating from the Customer’s configuration.
16.6.6 CGI-scripts may be used unless they adversely affect server performance or network integrity; scripts may not be shared with non-hosted domains.
16.6.7 Background daemons are not permitted other than on VPS accounts.
16.6.8 Passwords must be unique and at least 12 characters, including at least one of each: number, uppercase letter, lowercase letter.
16.6.9 Information provided to us must be complete, accurate and up to date.
16.6.10 Game servers and related applications must not be run on any Optimus Systems service.
16.7 Back-ups of Subscribed Services
16.7.1 We will only perform backups of Customer Content if Subscribed Services are purchased in our Standard Hosting or Reseller Plans, or there is a written agreement for us to do so.
16.7.2 Where we are not required to perform backups, the Customer agrees to perform necessary backups to protect against financial loss from data loss.
16.8 Suspension of Subscribed Services and removal of Customer Content
16.8.1 We may suspend/disconnect/deny access without notice if any of the circumstances in this clause apply (including breach, false information, more than 10 business days in arrears, technical failure/maintenance, legal requirement, adverse impact on server performance/network integrity, or economic non-viability with 90 days’ notice).
16.8.2 Suspended services under 16.8.1.1 will not be reinstated until the breach is remedied (if capable), or the account and interest is paid in full, and a $75 reinstatement fee is paid.
16.8.3 The 14 day grace period outlined in 16.8.1.3 is a privilege and cannot be extended. We may increase the reinstatement fee for repeated non-payment.
16.8.4 We will compensate for suspension under 16.8.1.4 only, in accordance with the Service Level Agreement.
16.8.5 We may remove Customer Content in accordance with our Removal of Customer Content Policy (available upon request).
16.9 Warranties and limitation of liability relating to Subscribed Services
16.9.1 We do not give express warranties for Subscribed Services, including for continuous access, prevention of data loss/corruption, restoration, or preventing unauthorised access.
16.9.2 Any implied condition or warranty is excluded unless unlawful.
16.9.3 Our liability is limited (to the extent lawful) to re-supplying Subscribed Services and/or paying reasonable costs of re-supply.
16.9.4 We do not control or supervise content accessed via Subscribed Services and are not responsible for it.
16.10 Termination of Subscribed Services
16.10.1 Either party may terminate for material breach (with rectification pathway where applicable).
16.10.2 We may terminate if the Customer knowingly provides false/misleading information, abuses or threatens staff, or the relationship is not economically viable.
16.10.3 We may choose not to renew a subscription, with 90 days’ notice.
16.10.4 The Customer may terminate by giving notice at least 2 business days before the end of the paid-up period, effective from the end of that paid-up period.
16.10.5 If terminated by us under 16.10.1 or 16.10.2, all outstanding Subscription Charges become payable upon notice.
16.10.6 We are not required to refund prepaid Subscription Charges, unless terminated by the Customer under 16.10.1.
16.11 Sub-contracts
16.11.1 We may subcontract performance without the Customer’s consent.
16.12 Variation
16.12.1 We may modify the User Agreement (including Subscribed Services or prices) by email or by changing a renewal order. Modifications take effect on the later of the day after the last day of the current prepaid period, or 30 days after notice. Use after the effective date constitutes acceptance.
16.12.2 The User Agreement plus any written agreement constitutes the entire agreement between Optimus Systems and the Customer.
16.13 Notice
16.13.1 Notices must be in writing and may be delivered by hand, receipted mail, or email.
16.13.2 Notice is treated as given:
- hand: on delivery date;
- post: on date recorded by postal authority;
- email: on receipt by sender of notification of receipt by the recipient’s email server, but if not on a business day or after 5.00pm, then at 9.00am next business day.
16.13.3 The Customer is responsible to notify Optimus Systems of changes to contact details.
17. Privacy
17.1 We collect, use and disclose Personal Information about your Users and other representatives in accordance with:
- the Privacy Act 2020;
- our Privacy Policy (www.optimus.co.nz/privacy); and
- this Agreement.
17.2 For the purposes of this Agreement, references to ‘you’ (or similar) in our Privacy Policy will be construed as references to your Users and other representatives.
17.3 You confirm that your Users and other representatives consent to and authorise our collection and use of their Personal Information, and that you have advised them of their rights to access and request correction in accordance with our Privacy Policy.
18. General
18.1 Optimus Systems reserves the right to change these terms of trade from time to time by providing not less than 30 days prior written notice.
18.2 Failure to enforce any term or exercise rights is not a waiver.
18.3 No variation or representation outside these terms is valid unless agreed to in writing.
18.4 If any provision is invalid or unenforceable, remaining provisions remain in full force and effect.
18.5 This agreement is governed by the laws of New Zealand and disputes are subject to the exclusive jurisdiction of the Courts of New Zealand.
18.6 If there is any contradiction between these Terms of Trade and a Managed Services Agreement (or equivalent), the Managed Services Agreement prevails.
19. Dispute Process
19.1 Except for clauses 5.6 and 16.5.5 (disputes of invoices/subscription charges), this clause 19 applies to disputes in connection with Products and Services provided by Optimus Systems.
19.2 The parties will first endeavour to resolve any dispute by agreement and (if they agree) mediation.
19.3 If not resolved within 30 days of arising, the dispute shall be submitted to arbitration of one arbitrator under the Arbitration Act 1996.
19.4 If the parties cannot agree on an arbitrator, the arbitrator will be appointed by the President or a Vice President of the New Zealand Law Society. The appointment is binding and not subject to appeal.
19.5 No party may start proceedings relating to the dispute (unless seeking urgent interlocutory relief) without first complying with this clause.
