Terms & Conditions
GENERAL TERMS OF TRADE
The general terms of trade below apply to the supply of goods and/or services by geoworx Limited.
1.Parties and Definitions
1.1 "geoworx Ltd” for the purposes of this agreement, shall mean geoworx limited, any person or entity acting for or on behalf of geoworx limited or with the permission or authority of geoworx limited.
1.2 “Client” shall mean the Client, any person or entity acting for or on behalf of the Client or with the permission or authority of the Client as detailed on any quotation, estimate, Statement of Work or notation as provided by geoworx Ltd to the Client.
1.3 “Services” shall mean all goods and services supplied by geoworx Ltd to the Client and includes any recommendations, consultancy advice, technical documentation, implementation or other services defined in each Statement of Work.
1.4 “Price” shall mean the price payable for services as agreed between geoworx Ltd and the Client in accordance with clause 4 of this contract.
2.1 The Services provided shall be described on any Statements of Work, Quotations, Invoices, or any other such form as provided by geoworx Ltd to the Client.
3.Services and Conduct
3.1 The Services provided shall be described on the Statements of Work, Quotation, Invoices, or any other such form as provided by geoworx Ltd to the Client.
3.2 The Client and geoworx Ltd agree that where all, or any of, the Services are acquired for the purposes of a business the provisions of the Consumer Guarantees Act 1993 are excluded in relation to those Services.
3.3 In providing the Services geoworx Ltd shall conduct all undertakings with the level of expertise and attention that would normally be expected of a competent, diligent professional. geoworx Ltd shall comply with all applicable statutes, regulations and codes applicable to the Services, including but not limited to compliance with the Health and Safety at Work Act 2015.
3.4 geoworx Ltd cannot guarantee its work as many infrastructure and networking factors are outside of our control. Consequently, geoworx Ltd shall not be liable for any consequences of the provision of services to you, except where those consequences arose as a direct result of the proven negligence on the part of geoworx Ltd.
3.5 The Client may ask for Change Requests in writing or may ask geoworx Ltd to submit proposals for a variation to the Services. Where geoworx Ltd considers a direction from the Client or any other circumstance is a Variation to the agreed service level then geoworx Ltd will notify the Client as soon as is practicable.
3.6 geoworx Ltd shall treat all staff of the Client and the Clients partners and third parties with absolute professional respect. geoworx Ltd will in the provision of all Services be inclusive and treat all with the same level of respect and kindness.
3.7 The Client’s Representative has authority to give geoworx Ltd instructions on the Client’s behalf; and may monitor, review, approve, accept, reject or confirm any part, or all, of the Services. If the Client changes the Client’s Representative, the Client shall first inform geoworx Ltd in writing.
3.8 geoworx Ltd’s Representative has authority to receive instructions on behalf of geoworx Ltd and for co-ordinating and providing the Services as agreed on a day-to-day basis and must communicate with the Client’s Representative when required.
3.9 geoworx Ltd must not assign, transfer or subcontract all or part of its rights or obligations under this Agreement without the Client’s prior written approval.
4.1 Access: If geoworx Ltd is to perform the Services at the Customer’s premises, the Customer will provide the following at the Customer’s expense:
4.2 Access to and the right to use the Customer’s facilities reasonably necessary for geoworx Ltd to perform its obligations under the Agreement, including Internet access, computer systems and other IT infrastructure;
4.3 Access to and sufficient time with the Customer’s technical, management and other personnel necessary for geoworx Ltd to perform its obligations under the Agreement;
4.4 A safe working environment to all geoworx Ltd personnel in compliance with all relevant legislation and regulations, including the Health & Safety at Work Act 2015.
5.Price and Payment
5.1 The Client shall pay geoworx Ltd the fees, disbursements and any other expenses for Services completed at the times and in the manner set out in the Statement of Work or other contractual documents. Price will be detailed in a Statement of Work or Quotation, unless amended by a Variation (3.5).
5.2 Where Services are carried out on a time charge basis, geoworx Ltd may purchase such incidental goods and/or Services as are reasonably required for geoworx Ltd to perform the Services e.g. travel and accommodation. The cost of obtaining such incidental goods and/or Services shall be payable by the Client. geoworx Ltd shall maintain and provide copies of records which clearly identify time and expenses incurred.
6.1 All non-disputed amounts payable by the Client shall be paid no later than the 20th day of the following month of the relevant invoice date.
7.Acceptance of Terms of Trade
7.1 Any engagement of geoworx Ltd’s Services shall constitute acceptance of the Terms and Conditions of Trade of geoworx Ltd by the Client. Should more than one Client enter into this agreement then the Clients shall be jointly and severally liable for payment in full of the Price.
7.2 The terms and conditions of this agreement can only be amended with the written consent of geoworx Ltd and shall be binding on the Client.
7.3 In the event that the Client proposes any change to the structure of the Clients business, a change in Shareholding, Name, Directors, Premises, postal address, registered office or Sale of the business the Client shall give no less than fourteen (14) days written notice of the proposed change or changes. If any loss is incurred by geoworx Ltd the Client shall be liable for any loss suffered by geoworx Ltd due to the Client not complying with this provision.
8.Default and consequences of Non-Payment
8.1 If the Client defaults in payment of any invoice when due, the Client shall pay all costs and disbursements incurred by geoworx Ltd in pursuing the debt including legal costs on a solicitor and own Client basis and geoworx Ltd’s collection agency costs.
8.2 Interest on overdue or unpaid invoices shall accrue from the date when payment becomes due daily until the date payment is received at a rate of 2.5% per calendar month and all interest shall compound monthly before and after any judgement until payment is received in full.
8.3 geoworx Ltd at its discretion may suspend or terminate the supply of goods and/or services should the Client, at any time be in breach of any obligation to geoworx Ltd (including those relating to payment). geoworx Ltd will not be liable for any loss or damages the Client has deemed to have suffered because geoworx Ltd has exercised their rights under this clause.
8.4 If any account remains overdue after thirty (30) days then an amount of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) whichever is the greater, shall be charged for administration fees and shall become immediately due and payable.
8.5 Without prejudice to geoworx Ltd’s other remedies at law, geoworx Ltd shall be entitled to cancel all or any part of any supply agreement with the Client which remains unfulfilled and all amounts owing to geoworx Ltd shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to geoworx Ltd becomes overdue of payment, or in geoworx Ltd.’s opinion the Client will be unable to meet his payments as they become due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, liquidator, manager (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
9.Right of Cancellation
9.1 Should the Client cancel any contract with geoworx Ltd then the Client shall be liable for any loss incurred by geoworx Ltd (including but not limited to loss of profits) up to the time of Cancellation.
9.2 Where geoworx Ltd breaches this Agreement, geoworx Ltd is liable to the Client for reasonably foreseeable claims, damages, liabilities, losses or expenses caused directly by the breach. geoworx Ltd shall not be liable to the Client under this Agreement for the Client’s indirect, consequential or special loss, or loss of profit, however arising, whether under contract, in tort or otherwise.
9.3 The maximum aggregate amount payable, whether in contract, tort or otherwise, in relation to claims, damages, liabilities, losses or expenses, shall be no larger than the total value of the engagement.
9.4 Without limiting any defences, a Party may have under the Limitation Act 2010, neither Party shall be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made on a Party within 1 year from completion of the Services.
10.1 Pre-existing Intellectual Property means the intellectual property rights owned by geoworx Ltd or any third party and provided or used by geoworx Ltd in carrying out the Services.
geoworx Ltd hereby grants to the Client or agrees to procure the grant to the Client of, an unrestricted royalty-free licence to use and copy Pre-existing Intellectual Property to the extent reasonably required to enable the Client to make use of the Services or use, adapt, update or amend any physical work relating to the Services.
Intellectual property prepared or created by geoworx Ltd in carrying out the Services (“New Intellectual Property”) shall be jointly owned by the Client and geoworx Ltd. The Client and geoworx Ltd hereby grant to the other an unrestricted royalty-free license in perpetuity to copy or use New Intellectual Property. Intellectual property owned by a Party prior to commencement of this Agreement and intellectual property created by a Party independently of this Agreement remains the property of that Party. The Ownership of data and information collected by geoworx Ltd and paid for by the Client shall, after payment by the Client (such payment being part of the fee), lie with the Client. geoworx Ltd does not warrant the suitability of New Intellectual Property or Pre-existing Intellectual Property for any purpose other than the Services or for any other use stated in the Agreement.
11.1 Neither party shall, while any project is in progress and for a period of 6 months thereafter, without the prior written consent of the other party:
(a) directly or indirectly solicit the services of or offer employment to an employee of the other party who is or has been involved with the subject matter of this Agreement ("a Relevant Employee");
(b) directly or indirectly attempt to induce a Relevant Employee to terminate their employment with the other party
(c) engage or attempt to engage a Relevant Employee of the other party, either directly or through a third-party agency.
12.Privacy Act 1993
12.1 The Client shall have the right to request geoworx Ltd for a copy of the information about the Client retained by geoworx Ltd and the right to request geoworx Ltd to correct any incorrect information about the Client held by geoworx Ltd.
12.2 The Client shall provide to geoworx Ltd, free of cost, as soon as practicable following any request for information, all information in his or her power to obtain which may relate to the Services. geoworx Ltd shall not, without the Client’s prior consent, use information provided by the Client for purposes unrelated to the Services. In providing the information to geoworx Ltd, the Client shall ensure compliance with the Copyright Act 1994 and shall identify any proprietary rights that any other person may have in any information provided.
12.3 geoworx Ltd agrees to hold all information received from or about the Client that is not already in the public domain in confidence and not disclose such information to any third party or use it in any way without the Client’s prior written consent, except to the extent necessary to fulfil its obligations under this Agreement or to comply with statutory obligations. All information will be transmitted using encryption and will be stored with encryption at rest.
12.5 All communications relating to privacy should be sent to firstname.lastname@example.org
13.1 The Parties shall attempt to resolve any dispute between them in relation to this Agreement, or any matter arising from it, by way of good faith discussions in the first instance. If the dispute has not been resolved within 10 working days of the dispute being notified by one Party to the other, then the dispute will, should a Party wish to pursue the dispute, be determined by mediation. If the Parties then fail to resolve the dispute by way of mediation within a reasonable period, then either Party may refer the dispute to arbitration in accordance with the following:
(a) the arbitration will be conducted by a sole arbitrator in accordance with the Arbitration Act 1996 and will not be an international arbitration as defined by that Act;
(b) the sole arbitrator is to be appointed by a panel of two representatives acting unanimously, one each appointed by the Client and geoworx Ltd;
(c) in the event that such representatives have not agreed upon an arbitrator within 10 working days of the dispute being referred to arbitration the arbitrator will be appointed by the then President of the New Zealand Law Society or his or her nominee; and
(d) the seat and location of the arbitration will be at a location in New Zealand determined by the Client. Nothing in this clause prejudices either Party's right to institute court proceedings to seek injunctive or urgent declaratory relief in respect of any dispute, and geoworx Ltd will not suspend the Services during any dispute (but subject to clause 9.1).
13.2 This Agreement is governed by the New Zealand law, the New Zealand courts have (nonexclusive) jurisdiction in respect of this Agreement (subject to clause 13.1), and all amounts are payable in New Zealand dollars.
13.3 Unless the contrary is expressed in writing to geoworx Ltd, geoworx Ltd shall take out and maintain for the duration of the Services a policy of Public Liability insurance to cover damage to property and personal injury for at least $2,000,000 per occurrence.
13.4 If either Party is found liable to the other (whether in contract, tort or otherwise), and the claiming Party and/or a Third Party has contributed to the loss or damage, the liable Party shall only be liable to the proportional extent of its own contribution. For the avoidance of any doubt geoworx Ltd is responsible to the Client for the services of any sub-contractor, and where the Client is the claiming Party a “third party” for the purposes of this clause 13.4 will not include any subcontractor or any other person or entity for whom geoworx Ltd is responsible.
14.1 Nothing in this Agreement shall restrict, negate, modify or limit any of the Client’s rights under the Consumer Guarantees Act 1993 where the Services acquired are of a kind ordinarily acquired for personal, domestic or household use or consumption and the Client is not acquiring the Services for the purpose of a business.
14.2 Time for delivery if stated is according to geoworx Ltd’s best estimation but is not guaranteed nor shall it be a representation or condition of any contract. The Client shall not be relieved of any obligation to accept or pay for the goods by reason of any delay in delivery other than to delay payment until after delivery is made.
14.3 The risk in any goods passes to the Client on delivery by geoworx Ltd. Goods are delivered to the Client when made available to the Client. The client will be fully responsible for any loss or damage to the goods following delivery however caused. Ownership of the goods shall remain with geoworx Ltd until payment is received in full.
14.4 geoworx Ltd and the Client will be aware of, and comply with, any relevant obligations imposed on them under the Health and Safety at Work Act 2015 (the “Act”). geoworx Ltd has not and will not assume any duty imposed on the Client from time to time pursuant to the Act arising out of this engagement.
Version 1.1 - Published 19/10/2019 - Addition of Section 12.4 and 12.5
Version 1.0 - Published 05/09/2019