Pursuant to the Client’s request that Spectrum Consulting provide Services, this Agreement sets out the terms and provisions that apply to the contract between the parties. Any Schedule attached to this Agreement whether at it’s commencement or at any other time is an integral part of this Agreement and needs to be referred to separately.
This Agreement has the following terms appearing elsewhere in this Agreement and Schedules, the following definitions shall have effect in interpreting this Agreement:
- "Agreement" means this document including the Schedules attached
- "Designated Premises" shall be the Client's premises as set out in the Schedules and such other premises in New Zealand as the Client shall specify from time to time;
- "Equipment Support" means those services applying to the Equipment, Software as described in the Schedules required to maintain the Equipment in Good Operating Condition;
- "Good Operating Condition" means that the System shall normally operate without the presence of known Urgent Faults or Serious Faults;
- "Equipment" means a unit of computer hardware identified by make, model and serial number including all the contents of the model contained within the unit listed in the Schedule.
- "Force Majeure" event means an event beyond the reasonable control of either party which makes it impossible or illegal to perform, or prevents compliance with, or the performance of, a party’s obligations under this Agreement including but not limited to:
- fire, floods, storms, tempest, earthquake or other act of God;
- any act of a public enemy, war, civil disorders, rebellions, revolution, riot, act of civil or military authority; or
- any act of a third party engaged in subversive activity or sabotage that is not an employee, agent or subcontractor of a party to this Agreement; and
- any change in applicable law or regulation or in its interpretation by any judicial body, tribunal, or regulatory authority,
to the extent that such event makes it impossible or illegal to perform, or prevents compliance with, or the performance of that party’s obligations under this Agreement.
- "On-Site Time" means the time between when the Client requests service from Spectrum Consulting to the time a Spectrum Consulting representative arrives at the Client's premises to perform service.
- "Repair" means restoring to good working order any failing item of Equipment listed in the Schedule(s) by repair or replacement whether under Warranty or out of Warranty.
- "Repair Time" means the time by which the Client is obtaining useful productivity from the Equipment defined in the Schedule(s) on either a repaired unit or a functionally equivalent replacement.
- "Response Time" means the time between when the Client requests Support Services from Spectrum Consulting to the time the Client is advised by Spectrum Consulting what action will be taken to correct the problem.
- "Schedule(s)" means any schedule of Equipment, Software or Support Services attached to this Agreement by the agreement of both parties.
- "Services" means any function performed by Spectrum Consulting as agreed with the Client and defined in the attached Schedule(s).
- "Software" means the programs residing within the Equipment as listed in the Schedule(s), being any or all of; Operating Systems, Network Operating Systems, Applications.
- "Support Services" means the supply or provision of Equipment or Support Services as specified in the Schedule(s) to this Support Services Agreement.
- "Warranty" means the complete implementation of the manufacturers limited liability warranty in all the terms and conditions contained within the warranty for the Equipment listed in the Equipment schedule.
2. Entire Agreement
This Agreement constitutes the entire Agreement between the parties as they relate to the subject matter of this agreement, and there are no representations, understanding or agreements relating to this Agreement which are not fully expressed in this Agreement. This agreement shall supersede and cancel all prior agreements or understandings between the parties, either oral or in writing.
This Agreement shall not be amended or varied in any respect except in writing signed by duly authorised representatives of both parties. Any such amendments or variations to this Agreement shall apply on the effective date stated in such amendment or variation, or from the date they are given effect to by Spectrum Consulting, if no effective date is stated.
4. Governing Law
This Agreement is governed by and construed in accordance with the laws of New Zealand.
If any provision contained in this Agreement is held to be illegal, invalid, or unenforceable, it shall be severable, shall be deemed to be deleted from this Agreement and shall not affect the validity of enforceability of other provisions in this Agreement.
Neither Spectrum Consulting nor the Client shall assign or sub-contract all or part of this Agreement, or any interest in it, without the other party’s prior written consent.
7. Successor in Interest
Notwithstanding clause 5, a successor in interest by merger, by operation of law, assignment, purchase or otherwise of the entire business of either party, shall acquire all interest of such party.
8. Dispute Resolution
If a dispute arises between Spectrum Consulting and the Client in relation to any matter arising out of this agreement, the parties agree to enter into negotiations in good faith to try to resolve the dispute. Either party may initiate the negotiations by giving written notice to the other party.
The party who initiates the resolution procedures must name its representative in the negotiations when giving written notice to the other party. The other party must then give prompt written notice to the initiating party naming its representative in the negotiations. Each representative must have authority from the party he or she is representing to settle the dispute. Within 5 working days of both parties having been advised of the other party’s representative, the representatives must enter into open and frank discussions to try to resolve the dispute. The commencement of this discussion is deemed to be the negotiations being initiated.
If the dispute has not been settled within 20 working days of negotiations being initiated, the parties will try to settle the dispute by mediation before resorting to arbitration. Either party may initiate mediation by giving written notice to the other party. The mediator shall be agreed on by the parties, but if the parties cannot agree on one within 10 working days after the mediation has been initiated then the mediator shall be appointed by the President of the Auckland District Law Society.
If the dispute has not been settled within 20 working days after the appointment of a mediator by agreement or within a longer period agreed on in writing by the parties, then the parties agree to refer the dispute to arbitration in accordance with the Arbitration Act 1996 (or any statutory modification or amendment to that Act). Either party may commence the arbitration by giving written notice to the other stating the subject matter and details of the dispute and that party’s desire to have the dispute referred to arbitration. The arbitration shall by conducted by one arbitrator agreed by the parties. The decision of the arbitrator shall be final and binding on the parties, and the costs of the arbitrator shall (subject to any award by the arbitrator) be borne equally by the parties.
During the resolution of any dispute, the parties shall continue to perform their obligations under the agreement as far as possible as if no dispute had arisen, pending final settlement of the dispute.
Nothing in this clause shall preclude either party from taking immediate steps to seek equitable relief before a New Zealand Court.
Spectrum Consulting and the Client agree that each party shall:
Not use, disclose, reproduce or otherwise make available, proprietary information provided by the other party to any person, firm, or enterprise (other than each party’s employees or agents who have a need to know such information for the purposes of this Agreement), unless specifically authorised in writing to do so by the other party.
Exercise all due care and diligence and take all reasonable precautions to prevent any unauthorised of any proprietary information. Such precautions shall at least be as careful as the recipient for its own confidential information.
Indemnify and keep indemnified the other party against damage or loss suffered and arising from unauthorised disclosure of proprietary information by any of its employees or agents.
Both parties shall keep confidential the terms of this Agreement and all data and other information which comes into their possession pursuant to, or as a result of, or in the performance of, this Agreement and shall not divulge such information to any third party without the prior written consent of the other.
Spectrum Consulting will indemnify and keep the Client indemnified against all actions, proceedings, losses, liabilities, damages, claims, demands, costs and expenses (including all legal costs and expenses on a solicitor and own Client basis) (collectively called "Action") suffered or incurred by Client to the extent such arises out of, or in connection with, any claim that the Client's authorised use of the Services or any product of the Services constitutes a breach of an existing patent, copyright, trade secret or other proprietary right provided that:
(a) Client, at the request of Spectrum Consulting, affords all reasonable assistance to Spectrum Consulting in defending or settling the Action and makes its employees available to give statements, advice and evidence as Spectrum Consulting may reasonably request, subject to Client being reimbursed for all reasonable costs and expenses occasioned by Client's co-operation in such defence;
(b) Spectrum Consulting is notified promptly in writing of any Action and is given complete authority and information required for the conduct of the same;
Spectrum Consulting having the sole control of the conduct of any Action and all negotiations for its settlement or compromise;
Client ceases using the infringing item until Spectrum Consulting obtains a licence for the Client to use the item, or modifies to become non-infringing (without substantial loss of functionality or performance).
10. Consumer Guarantees Act
The Client agrees that the goods or services supplied by Spectrum Consulting are obtained for business purposes, and that the Consumer Guarantees Act 1993 shall not apply.
Either party may terminate this agreement immediately by notice in writing if the other party materially breaches this agreement, and does not remedy the default or put all reasonable steps in place to prevent the default from recurring, within 30 days after receiving notice of default from the terminating party. If the Client alleges breach of the standard of services provided by Spectrum Consulting, termination may not occur unless the parties have used all the escalation steps and the dispute resolution procedure through to conclusion of mediation at least.
Either party may immediately terminate this Agreement by written notice if the other party becomes insolvent or goes into receivership or liquidation. Either party may terminate this agreement in accordance with clause 12.4.
In the event of termination Spectrum Consulting will be entitled to payment for services performed up until the date of termination and additionally 2 months Guaranteed Spare Parts Provisioning fees as outlined in Schedule A – Pricing.
Termination will not affect the rights of the parties to seek legal redress in the event of any breach of this Agreement.
12. Force Majeure
12.1 If either party is unable to perform its obligations under this agreement because of any Force Majeure Event, the party unable to perform shall promptly give notice to the other party, The "disadvantaged party" may, at its option, so long as such inability to perform continues:
(a) Obtain such performance at its own expense from other sources, and/or
(b) Suspend the application of this Agreement including any payment or performance obligations relating to such Force Majeure period.
12.2 Neither party shall be liable to the other for damages or other claims resulting from a Force Majeure event or related lack of performance.
12.3 In this Agreement, Force Majeure Event means an event beyond the reasonable control of either party which makes it impossible or illegal to perform, or prevents compliance with, or the performance of, a party’s obligations under this Agreement including but not limited to:
(i) fire, floods, storms, tempest, earthquake or other act of God;
(ii) any act of a public enemy, war, civil disorders, rebellions, revolution, riot, act of civil or military authority; or
(iii) any act of a third party engaged in subversive activity or sabotage that is not an employee, agent or subcontractor of a party to this Agreement; and
(iv) any change in applicable law or regulation or in its interpretation by any judicial body, tribunal, or regulatory authority,
to the extent that such event makes it impossible or illegal to perform, or prevents compliance with, or the performance of that party’s obligations under this Agreement.
An event that would or could otherwise constitute a Force Majeure Event for the purposes of this Agreement is not a Force Majeure Event which can be relied on by a party to the extent that:
that event is constituted by the insolvency of either party or a sub-contractor, or lack of funds for any other reason; or
the impact or the event itself could have been prevented or mitigated by steps which were reasonable taking into account the obligation to be met,
(c) that event is constituted by industrial labour or personnel dispute involving Spectrum Consulting, its sub-contractors or their respective employees.
12.4 If the impact of the Force Majeure continues for more than 90 days without substantial performance of this agreement being able to resumed, either party may terminate this agreement by giving 7 days written notice to the other.
13. Limitation of Liability
Under no circumstance shall either party, their employees, or agents be liable to the other in contract, tort (including negligence or, to the extent permitted by law, breach of statutory duty) or otherwise for loss (whether direct or indirect) of profits, business or anticipated savings or for any indirect or consequential loss whatsoever.
In this clause 13 “negligence” (without limiting this term) includes any act resulting wholly or partly from any error of fact, law or judgement.
Spectrum Consulting’s liability to pay direct losses caused to the Client is limited to an accumulative total equal to 25% of the annual contracted amount
Each provision of this clause 13 and each protection given to either party by any provision of this clause 13 is to be construed as a separate limitation applying and surviving even if for any reason any of the provisions is held inapplicable in any circumstances.
The provisions of clause 13 shall survive the termination of this Agreement.
14. Delay, Concession, or Waiver
Delay, concession, or waiver by either party in enforcing against the other any term or provision of this Agreement shall not prejudice or restrict the rights of that party, nor shall any delay, concession or waiver establish or operate as a waiver or precedent in respect of any subsequent breach of this Agreement.
Goods will remain the property of Spectrum Consulting until fully paid for.
Ownership in copyright in all programs, documents and electronic forms supplied to the Client by Spectrum Consulting shall remain in Spectrum Consulting or its licensors. The Client may use these programs, documents and electronic forms on the terms of the licences granted by Spectrum Consulting’s licensors. If the copyright is owned by Spectrum Consulting, the Client has a licence to use, for its internal business purposes while this agreement remains in force, and may request to have full copyright of programs or software at the time of requesting the service, if appropriate terms are agreed with Spectrum Consulting.
17. Software Licences
The Client shall ensure that Spectrum Consulting engineers andsupport staff have the right to use third party and Client software, for support purposes only.
18. Client Obligations
The Client shall, during the term of this Agreement:
18.1 Operate their system environment in an environment in accordance with any relevant manufacturers’ specifications or with reasonable specifications notified in writing by Spectrum Consulting.
18.2 Operate their System Environment with suitable trained and skilled staff in accordance with reasonable recommendations notified in writing by Spectrum Consulting or usual industry practice.
18.3 Take any action reasonably required to maintain the benefit of manufacturer warranties during their currency, and any action reasonably required for Spectrum Consulting to have recourse to the manufacturer licences and warranties for performing Services under this Agreement.
18.4 Have a Client representative available at the Client’s premises during Spectrum Consulting's performance of Services, should Spectrum Consulting request this.
19. SPECTRUM CONSULTING’S OBLIGATIONS
During the term of this Agreement, Spectrum Consulting shall:
19.1 Provide the Services to the Client in accordance with this Agreement, including the service levels agreed.
19.2 Provide the Services in accordance with the manufacturer's specifications, good engineering practice and using all due care and skill, and shall give effect to manufacturer warranties.
19.3 Repair or replace parts and/or units as reasonably deemed necessary by Spectrum Consulting.
19.4 In supplying the Services:
(a) not cause any date-dependant equipment or systems to cease to be Year 2000 Compliant;
(b) not do any act or thing that invalidates, or otherwise removes Clients rights under, any warranty given by the manufacturer or vendor of Client’s computer hardware, software, systems and related equipment.
19.5 Comply with the Client’s reasonable instructions and, when on the Client’s premises, comply with the Clients health and safety and security policies, as notified to Spectrum Consulting from time to time