Magnum IT Limited Terms and Conditions
1 Agreement to Take Effect
1.1 The Magnum IT Limited Terms and Conditions (this Agreement) is to take effect from the Commencement Date as specified in the Products & Services Summary.
2.1 This Agreement applies in relation to any sale of Goods or Services by Magnum IT Limited to you as specified in a Service Schedule. This Agreement comes into force when the Products & Services Summary is signed by you and a person authorised by Magnum IT Limited.
3 Initial Term
3.1 Unless terminated earlier in accordance with this Agreement or at law, this Agreement shall commence on the Commencement Date as agreed between you and Magnum IT Limited and shall continue for the Term. Thereafter, and subject to any contrary provision in the Products and Services Summary, the service will continue until either party provides the other with 20 Business Days prior written notice of termination.
4.1 Magnum IT Limited shall (subject to the other provisions of this Agreement) perform the Services in accordance with;
4.1.1 This Agreement;
4.1.2 The Service Level Schedule, where applicable and subject to clause 4.2;
4.1.3 Any specifications set out in the Products & Services Summary;
4.1.4 Any specifications set out in the Schedules; and
4.1.5 All laws, regulations, rules and good industry practice applicable to the Services, i.e. to the same standard expected of a reasonable, diligent and efficient provider of services similar to the Services in New Zealand.
4.2 Magnum IT Limited shall employ its best endeavours to supply the Services within the timeframes specified in the Service Level Schedule. Magnum IT Limited does not warrant that it will be capable of attending your premises or of providing the Services at specific times requested by you during the Term, except to the extent prescribed in the Service Level Schedule.
4.3 Subject to clause 4.1.5 and to Magnum IT Limited otherwise complying with its obligations under this Agreement, Magnum IT Limited shall exercise its independent discretion as to the most appropriate and effective manner of providing the Services and of satisfying your expectations of those Services.
4.4 In the discharge of its duties, Magnum IT Limited shall comply with all of your reasonable resolutions, regulations and directions given from time to time as to the nature and scope of the Services to be provided.
4.5 Subject to compliance with security requirements and access restrictions imposed by you, Magnum IT Limited may provide the Services during such hours and on such days as it considers necessary and appropriate to ensure compliance with its obligations under this Agreement.
5.1 You shall, where required by Magnum IT Limited to provide the Services, ensure Magnum IT Limited has full and safe access to your premises and any necessary equipment, materials and information. You shall also ensure that Magnum IT Limited is provided with all facilities, services and accessories reasonably required to enable Magnum IT Limited to comply with its obligations under this Agreement.
6 Service Exclusions
6.1 Magnum IT Limited shall not be required to provide the Services specified as Excluded Services. If Magnum IT Limited agrees, at your request, to provide such Services, Magnum IT Limited shall be entitled to make Additional Charges.
7.1 Unless specified otherwise in the Products & Services Summary, Magnum IT Limited shall invoice you by way of a valid GST tax invoice for;
7.1.1 its monthly Charges in advance for any calendar month; and
7.1.2 Time and Materials Charges on completed delivery.
7.2 The Charges for the Supplies are specified in the Products & Services Summary. If there is any increase in the costs to Magnum IT Limited of providing the Supplies arising from increases in the price of any Goods, Services, Software or Software Licences sourced by Magnum IT Limited from third party suppliers between the date of signing of the Products and Services Schedule and the date of delivery to you, Magnum IT Limited has the right to increase the Charges to cover such increases. You shall pay the Charges in the manner specified in clause 8.
7.3 If you dispute the whole or any portion of the amount claimed in an invoice submitted by Magnum IT Limited, you shall pay the portion of the amount stated in the invoice which is not in dispute and shall notify Magnum IT Limited in writing (within 5 Business Days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then you shall pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in this Agreement.
7.4 Expenses and costs specified as Excluded Services are not included in the Charges and shall be your responsibility and Magnum IT Limited may impose an Additional Charge equivalent to the amount of such Expenses and costs.
7.5 Expenses are not included in the Charges and shall be your responsibility or, where the payment of Expenses is the legal responsibility of Magnum IT Limited, the Charges shall be increased by the amount of such Expenses. Any increase in the amount of Expenses between the date of any Products & Services Summary and the date of delivery of the Supplies, shall be your responsibility and the Charges shall be increased accordingly and debited to your account.
7.6 Magnum IT Limited will invoice you on or before the 10th Business Day of each month for the Charges for Services specified in the Products & Services Summary.
8.1 You will pay all invoices received from Magnum IT Limited in full by direct bank debit, or by such other method notified to you by Magnum IT Limited from time to time
8.2 Subject to any written terms agreed by Magnum IT Limited, payment for Equipment, accessories and/or Software shall be made within 7 Business Days of the issue of an invoice and payment for Services shall be made on or before the 20th of the month following the date of invoice.
8.3 Any Goods to be returned for credit must be returned within 10 Business Days of the date of delivery and such claims must quote the relevant sales invoice number for those Goods.
8.4 No failure by Magnum IT Limited to insist on payment in strict accordance with any written payment terms shall operate as a waiver of its rights in relation to your obligation to pay under any such written payment terms and any such failure shall not constitute a deferral of a payment obligation for the purposes of section 6 of the Credit Contracts and Consumer Finance Act 2003.
8.5 If Magnum IT Limited considers, at any time, that your credit is unsatisfactory, then it may require security for payment of the Charges from you and it may suspend performance of its obligations under any Contract, until Magnum IT Limited deems that sufficient security has been provided. All costs and expenses incurred by Magnum IT Limited as a result of such suspension and any recommencement, shall be payable by you upon demand.
8.6 Default interest shall be payable at the Default Interest Rate on any Overdue Amounts from the date payment was due in accordance with clause 8.2, until the date payment is received by Magnum IT Limited in clear funds, but this is without prejudice to any other rights available to Magnum IT Limited and in particular, you shall be liable for any legal or other collection costs on Overdue Amounts.
9 Sale of Goods (where applicable)
9.1 Delivery of any Goods shall be deemed to be complete from the time of delivery to your premises.
9.2 Risk of any loss, damage or deterioration of or to Goods shall be borne by you, once delivery of the Goods has occurred.
9.3 Property (being both legal and equitable title) in the Goods (other than Software) shall be retained by Magnum IT Limited, until the Charges for such Goods have been paid in full in accordance with clause 8.
9.4 Pending payment in full, you:
9.4.1 Grant to Magnum IT Limited a security interest in the Goods, and all of your present and future rights in relation to the Goods, which interest shall be a continuing security interest, securing the Charges payable by you, and the performance of all your obligations, under any Contract;
9.4.2 Acknowledge that Magnum IT Limited may, at your cost, register Magnum IT Limited’s security interest in the Goods, supplied by Magnum IT Limited to you under any Contract, and all of your present and future rights in relation to the Goods, on the Personal Property Securities Register;
9.4.3 Shall do all things and provide all information as Magnum IT Limited may require for the purpose of securing to Magnum IT Limited the Goods, the payment of the Charges payable by you, and the performance of all your obligations, under any Contract, ensuring that Magnum IT Limited has a perfected first ranking security interest in the Goods and any proceeds;
9.4.4 Shall not change your name without first notifying Magnum IT Limited at least 5 Business Days before such change takes effect and you shall notify Magnum IT Limited of any changes in or to any of your other details, prior to such changes taking effect;
9.4.5 Warrant that all information provided by you or on your behalf is true and accurate as at the date of any Contract and there are no facts or circumstances, which have not been disclosed to Magnum IT Limited, which would make that information untrue, inaccurate or misleading;
10 Installation (where applicable)
10.1 Where any Service provides for installation to be carried out by Magnum IT Limited, you shall be responsible for:
10.1.1 Providing suitable access to your premises at the Installation Address in all weather conditions for the vehicles and equipment that Magnum IT Limited will need to use in carrying out such installation;
10.1.2 Providing all necessary services and amenities to enable Magnum IT Limited to carry out such installation;
11.1 You will immediately upon delivery, examine the Goods and shall be deemed to warrant that you are satisfied that the Goods are in good working order and condition and are suitable for your purposes, except for any defects which are specified by you in a written notice delivered to Magnum IT Limited at the time of inspection.
11.2 Any manufacturers’ or other written guarantees provided to you in relation to the Goods, are in addition to any statutory rights you may have.
11.3 Magnum IT Limited shall not be liable for any damage caused by malfunction of the Goods or their incompatibility with your systems, where this is a result of:
11.3.1 Installation by unqualified trades persons or substandard installation; or
11.3.2 Any addition to, modification of, or change in location of the Goods or their being serviced by non-Magnum IT Limited personnel, other than as authorised by Magnum IT Limited; or
11.3.3 The use of the Goods otherwise than in accordance with manufacturer’s or suppliers’ instructions.
12 Implied Terms
12.1 Subject to clause 12.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
12.2 Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of Magnum IT Limited for any breach of such condition or warranty shall be limited, at the option of Magnum IT Limited, to one or more of the following:
12.2.1 if the breach relates to Goods:
(a) the replacement of the Goods or the supply of equivalent goods;
(b) the repair of such Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the Goods repaired; and
12.2.2 if the breach relates to Services:
(a) the supplying of the Services again; or
(b) the payment of the cost of having the Services supplied again.
13.1 Subject to the specific terms of any Service Level Schedule, Magnum IT Limited shall not be responsible for delays or defaults in delivery of Services or any part of them, nor for any resulting direct or consequential loss or damage. Your payment obligations shall not be affected by any such delay or defaults.
14.1 Notwithstanding clause 11, if Magnum IT Limited does have any liability to you, whether in contract or in tort or otherwise, in respect of all claims for loss, damage or injury arising from breach of any of Magnum IT Limited’s obligations arising under or in connection with any Contract, from any cancellation of any Contract, or from any negligence on the part of Magnum IT Limited or its officers, employees, agents or contractors, such liability shall not in aggregate exceed the Charges for the Supplies in respect of which the liability is claimed.
14.2 You warrant that you have not relied on any representation made by Magnum IT Limited which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by Magnum IT Limited.
15.1 You indemnify Magnum IT Limited and its officers, employees, agents and contractors from and against any loss, claims, costs, damages, expenses (including any legal costs and expenses on a solicitor/own client basis), liabilities, proceedings or demands, whether direct or indirect, incurred or suffered by any of them, which were caused as a result of any breach of the Contract by you or by any person for whom you are responsible, or any wilful, negligent or unlawful act or omission of yours.
16 Force Majeure
16.1 Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
16.2 If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party's obligations will be suspended.
16.3 If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 40 Business Days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
16.4 If this Agreement is terminated pursuant to clause 16.3, Magnum IT Limited shall refund moneys previously paid by you pursuant to this Agreement for Goods or Services not provided by Magnum IT Limited to you.
17.1 A party shall not, without the prior written approval of the other party, disclose the other party's Confidential Information.
17.2 A party shall not be in breach of clause 17.1 in circumstances where:
17.2.1 At the time of disclosure the information disclosed was in the public domain or subsequently enters the public domain without fault on the part of the disclosing party; or
17.2.2 The information disclosed was received in good faith by the disclosing party from a third party who has lawful possession of such information and a right to disclose the same; or
17.2.3 The disclosing party can establish by reasonable proof that the information disclosed was in its possession or known to it or developed by it without knowledge of or reference to the Confidential Information of the other party; or
17.2.4 Both parties mutually agree in writing to release the disclosed information from the terms of this clause 17; or
17.2.5 It is legally compelled to disclose the other party's Confidential Information.
17.2.6 Each party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.
17.2.7 Each party shall on demand return to the other party any documents supplied by it to the other in connection with this Agreement.
17.2.8 Notwithstanding any other provision of this clause, Magnum IT Limited may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
17.2.9 This clause shall survive the termination of this Agreement.
18 Intellectual Property
18.1 Unless specified otherwise in a Schedule, Magnum IT Limited or its suppliers retain sole ownership of Intellectual Property Rights (including rights pertaining to Confidential Information).
18.2 You must not, nor may you permit any other person to:
18.2.1 copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance the Software;
18.2.2 alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality, proprietary or trade secret, legend or notice, or any numbers, or other means of identification used on or in relation to the Software;
18.2.3 make any of the Software available to any person other than your employees without the prior written consent of Magnum IT Limited; or
18.2.4 do any act that would or might invalidate or be inconsistent with Magnum IT Limited's Intellectual Property rights.
18.2.5 You acknowledge that any Intellectual Property arising directly or indirectly out of the performance of this Agreement is or shall on creation be the property of Magnum IT Limited.
18.3 You must notify Magnum IT Limited of any actual, threatened, or suspected infringement of any Intellectual Property right and of any claim by any third party that any use of the Software infringes any rights of
any other person, as soon as that infringement or claim comes to your notice. You shall (at Magnum IT Limited's expense) do all such things as may reasonably be required by Magnum IT Limited to assist Magnum IT Limited in pursuing or defending any proceedings in relation to any such infringement or claim.
19.1 Without limiting the generality of any other clause in this Agreement, Magnum IT Limited may terminate this Agreement immediately by notice in writing to you if you:
19.1.1 19.1.2 19.1.3
19.1.4 19.1.5 19.1.6 19.1.7 19.1.8
19.1.9 19.2 If notice is
19.2.1 19.2.2 19.2.3
are in breach of any term of this Agreement and such breach is not remedied within 20 Business Days of notice of breach provided by Magnum IT Limited;
are unable to pay your debts as they fall due or you cease or threaten to cease to conduct your business in the normal manner;
enter into, or attempt to enter into any composition, assignment or other arrangement with, or for the benefit of your creditors;
become, threaten, or are in jeopardy of becoming insolvent;
have a receiver or receiver and manager appointed in respect of any of your property;
have a liquidator appointed; or
being a partnership, dissolve, threaten to dissolve or you are in jeopardy of dissolving; or
default in any other respect or permits to exist any circumstances which in any case have a similar effect to the matters listed in clauses 19.1.1 to 19.1.7; or
being a natural person, die. given to you under clause 19.1, Magnum IT Limited may, in addition to terminating the Agreement:
repossess any of its property in your possession, custody or control; retain any moneys paid;
charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
be regarded as discharged from any further obligations under this Agreement; and
19.2.5 19.3 You may terminate this Agreement immediately by notice in writing to Magnum IT Limited if Magnum IT Limited:
19.3.1 Commits a material breach of any of its material obligations under this Agreement, the breach is capable of being remedied, you have given Magnum IT Limited notice (no later than 30 Business Days after becoming aware of it) of the breach and that you regard that breach as material, and Magnum IT Limited has failed to remedy the breach, or failed to provide a plan to remedy the breach acceptable to you (acting reasonably), within a period of 10 Business Days of that termination notice, or such longer time as may be specified in that notice for remedying that breach; or
19.3.2 Commits a material breach of any of its material obligations under this Agreement and that breach is incapable of being remedied, provided you give Magnum IT Limited such notice of termination no later than 30 Business Days after becoming aware of the breach; or
19.3.3 Commits a series of related or similar breaches of any of its obligations under this Agreement which, when considered collectively, amount to a material breach, provided:
(a) You gives Magnum IT Limited such notice of termination no later than 30 Business Days after becoming aware of the last of such breaches;
(b) No later than 30 Business Days after becoming aware of the second to last of such breaches, you gave notice to Magnum IT Limited that a further related or similar breach
pursue any additional or alternative remedies provided by law would result in you being entitled to terminate this Agreement under this clause (19.3.3) and
(c) Magnum IT Limited failed to remedy the breaches, or failed to provide a plan to remedy the breaches acceptable to you (acting reasonably), within a period of 10 Business Days of that termination notice, or such longer time as may be specified in that notice for remedying that breach;
19.4 Subject to clause 19.3 you shall be entitled to terminate this Agreement at any time during the term providing Magnum IT Limited with not less than 20 Business Days written notice. If this Agreement is terminated, you shall immediately return any Equipment covered under this Agreement and remove all software covered under this Agreement from all devices and networks. In addition you shall forthwith pay the following amounts:
19.4.1 All Charges due and owing up to the date of termination including interest at the Default Interest Rate on any overdue Charges; plus
19.4.2 An amount equivalent to the remaining number of months left in the contract at the date termination was notified, times the agreed monthly Charges as specified in the Products & Services Summary,
19.4.3 Any and all reasonable costs and expenses that Magnum IT Limited notifies you it has incurred in relation to early termination of this Agreement, including debt recovery costs, legal costs, repossession costs, repairing, storing and selling costs; and
19.4.4 All GST or other taxes relating to payments made under this clause 19
20.1 The parties agree that the following provisions shall apply in respect of the disengagement:
20.1.1 On the termination or expiry of this Agreement, unless and until a disengagement plan has been agreed, the following is agreed:
(a) The disengagement period shall be a period nominated by you but shall not be less than 20 Business Days (Disengagement Period).
(b) During the Disengagement Period you may require Magnum IT Limited to perform a reduced level of Services in which case the relevant terms of this Agreement shall continue to apply to those reduced Services during that period.
(c) Magnum IT Limited shall continue to deliver the Services as required by you, and you shall continue to pay for those Services, on the same basis as prior to the Disengagement Period, to the extent that Magnum IT Limited is continuing to perform the Services.
(d) Magnum IT Limited shall do all things reasonably required by you to achieve a successful disengagement, including the use of reasonable endeavours to deliver any additional services reasonably required by you.
20.2 Except as contemplated in any disengagement plan, the Services that are required by you to be performed during the Disengagement Period shall continue to be delivered by Magnum IT Limited under the terms of the Agreement that applied immediately prior to the notice of termination and you shall continue to pay for those Services on the same basis as prior to the Disengagement Period.
20.3 Except to the extent that a disengagement plan specifies otherwise, you shall pay Magnum IT Limited on a basis agreed with Magnum IT Limited.
21.1 Any dispute or difference between you and Magnum IT Limited which may arise concerning any matter arising out of this Agreement (except a dispute or difference as to whether a material breach of the Dispute Procedure has occurred) shall be determined under the Dispute Procedure specified in clause 21.2.
21.2 Any dispute specified in clause 21.1 shall be referred for a decision by a suitably qualified person appointed jointly by the you and Magnum IT Limited
21.3 The Appointee shall, in reaching a decision, act as an expert and not an arbitrator and the decision shall be final and binding on you and Magnum IT Limited. The costs of the Appointee shall be borne in the proportions determined by the Appointee or equally if no such determination is made.
22.1 Any notice required to be served under this Agreement by either party shall be deemed to have been properly served if:
22.1.1 delivered or posted by prepaid letter addressed to the party at the address specified in the Products and Services Summary or such other address as may be advised in writing), and any such service by post shall be deemed effected on the second day after the day on which the notice was posted; or
22.1.2 delivered by email addressed to the party at the email address specified in the Products and Services Summary or at an email address otherwise provided for the service of notices and any such service shall be deemed to be effected at the time of receipt by the sender of confirmation of receipt of the email by the recipient.
23.1 The provisions of this Agreement shall not be varied, except by agreement in writing signed by the parties. It is the intention of Magnum IT Limited that the range of Services may change over the Term and that such changes will not require the replacement of this Agreement. Magnum IT Limited shall have the right to amend the description of the Services and the Charges from time to time provided that such changes are specified in written correspondence (including email) and are confirmed as accepted by both parties.
23.2 You may request an amendment to the Products & Services Summary to include a new service or to alter an existing Service at any time by submitting a change request to Magnum IT Limited. That change request shall include:
23.2.1 a description of the proposed change;
23.2.2 the reason for the proposed change; and
23.2.3 a need-by date that is reasonable in all the circumstances.
23.3 As soon as practicable following that request, you and Magnum IT Limited shall consult in order to consider whether or not to proceed with the requested variation. You and Magnum IT Limited must act reasonably in such consultation. No variation requested by you will be binding unless agreed by Magnum IT Limited.
24 General Provisions
24.1 During the Restraint Period, neither party shall solicit for employment, either directly or indirectly, any person who is employed or contracted by the other party.
24.2 A party shall promptly advise the other party if a person, who is employed or contracted by the other party, seeks to be employed or contracted by the first mentioned party prior to the expiration of the Restraint Period.
24.3 Magnum IT Limited may sub-contract for the performance of this Agreement or any part of this Agreement upon obtaining your prior consent. You shall not unreasonably withhold consent for the use of such a sub-contractor.
24.4 Magnum IT Limited may, without your consent, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of Services pursuant to this Agreement.
24.5 Unless otherwise specified in any Schedule, all Supplies are supplied as standard and have not been modified to meet your individual requirements. Magnum IT Limited makes no warranty as to the compatibility of Supplies with any of your products, systems or procedures, other than as specified in any Schedule.
24.6 You may not assign all or any of your rights or obligations under any Contract, without the prior written consent of Magnum IT Limited. A change in your ownership or control, whether direct or indirect is an assignment for the purposes of this clause 24.6.
24.7 You acknowledges that any representations made by you, or any information you have supplied to Magnum IT Limited, have been given to Magnum IT Limited to enable it to determine whether or not to supply any Goods and Services to you and you confirm that those representations and information are true and complete, and you will notify Magnum IT Limited if you have a change in circumstance, which may affect your prior representations and information supplied.
24.8 You irrevocably authorises Magnum IT Limited to make any enquiries relative to your credit or trading history, or that of your officers, shareholders or principals, which Magnum IT Limited considers necessary, and for that purpose to disclose and seek from any bank, financial institution, lender, accountant, solicitor, advisor, credit reference agency or any other person, any information including the details of your accounts or financial affairs and those of such officers, shareholders or principals..
24.9 You request and authorise the above parties to supply such information to Magnum IT Limited.
24.10 You acknowledges that all information provided by you or obtained by Magnum IT Limited will be held by Magnum IT Limited for use in the course of its business, including direct marketing activities, subject to your right (if you are an individual) of access to, and correction of, such information under the PA.
24.11 If any of this Agreement is declared or adjudged to be invalid, void or unenforceable, such provision shall be severable and shall not affect the validity, existence and/or legality of the balance of this Agreement
24.12 No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party. Any failure by Magnum IT Limited to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Magnum IT Limited to you, will not be construed as a waiver of Magnum IT Limited's rights under this Agreement.
24.13 You declare that the Supplies will be used primarily for business or investment purposes and not for personal, domestic or household purposes. You shall not do any act or make any omission, which gives rise or might give rise to any liability on your part and/or the part of Magnum IT Limited under the CGA or the FTA.
24.14 You shall not hold yourself out as the servant or agent of Magnum IT Limited to any third party and will not do any act or make any omission which has or is likely to have that effect.
25.1 In this Agreement, unless the contrary intention appears:
25.1.1 a reference to a person includes a partnership and a body, whether corporate or otherwise;
25.1.2 a reference to a clause is a reference to a clause of this Agreement;
25.1.3 words in the singular shall include the plural and vice versa;
25.1.4 words importing one gender shall include the other genders;
25.1.5 schedules to this Agreement are part of the operative part of this Agreement; and
25.1.6 words such as 'includes' or 'including' are not limiting and are to be interpreted as 'includes, without limitation' or 'including, without limitation' respectively
26.1 In this Agreement the following capitalised terms shall have the meanings specified as follows: Additional Charge means a charge in accordance with Magnum IT Limited's standard rates in effect from time
to time. Agreement means this agreement, the Magnum IT Limited Terms and Conditions, for the
provision of the Services,
Business Day means any day other than a Saturday, Sunday or a local or public holiday in New Zealand.
Business Hours means 8.30 a.m. to 5 p.m. on a Business Day. CGA means the Consumer Guarantees Act 1993.
Charges means the charges payable by you to Magnum IT Limited pursuant to this Agreement as specified in the Products & Services Summary.
Commencement date means the day on which Magnum IT Limited has agreed to provide services to you as specified in the Products and Services Summary.
Company means Magnum IT Limited New Zealand Limited or any operating division or related company of Magnum IT Limited New Zealand Limited.
Consumables means operating supplies, cables, CDs and DVDs), cleaning products, peripherals and supporting hardware.
Confidential information means the confidential information of a party which relates to the subject matter of this Agreement and includes:
Contract means a combination of any Service Schedule provided by Magnum IT Limited, this Agreement, including any payment terms specified, together with any particular written agreement signed by Magnum IT Limited and you with regard to the provision of Supplies and/or Managed IT Services including Products & Services Summaries signed by or on your behalf and by Magnum IT Limited.
Default Interest Rate means interest at 5% above the base lending rate from time to time charged to Magnum IT Limited by its principal banker, calculated on a monthly basis.
Disengagement Plan means the disengagement plan to be agreed by the parties.
Disengagement Period means the period commencing on the expiry or termination of this Agreement and ending on the date specified in or determined in accordance with a Disengagement Plan.
Dispute Procedure has the meaning given in clause 21. Equipment means any equipment specified in a Service Schedule or in any Products & Services
Summary signed by you.
Excluded Services means the services, tasks and charges specified in the Services Schedule as excluded from this Agreement.
Expenses means any GST and other taxes and duties on the supply of Goods or Services to you and any other expenses resulting from exchange rate fluctuations, customs charges, shortages or such other costs or expenses imposed on Magnum IT Limited for the supply of Goods and Services.
Force Majeure means a circumstance beyond the reasonable control of a party, which results in that party being unable to observe or perform on time an obligation under the Contract including, without limitation, strikes or other industrial action, acts of war, terrorism, riots, civil commotion, malicious damage, sabotage, revolution, acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster.
FTA means the Fair Trading Act 1986. Goods means Equipment, accessories, Consumables, Software and other goods supplied by
Magnum IT Limited to you pursuant to this Agreement.
GST means the meaning given to that term in the Goods and Services Tax Act 1985 and includes any change in the rate of GST under that legislation.
Installation Address means the address specified by you.
Intellectual Property Rights includes copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, confidential information and any other intellectual proprietary right or form of intellectual property including any such rights in respect of the Software.
Products & Services Summary means the schedule to this Agreement entitled “Products & Services Summary” which outlines the Charges for Services (as may be amended by a variation agreement from time to time).
Managed IT Services means IT consulting services, traditional dispatch services, consulting and procurement services specified in any written agreement signed by Magnum IT Limited and you or in any Products & Services Summary signed by you.
Overdue Amounts means any unpaid moneys owing by you to Magnum IT Limited under any Contract from time to time.
Restraint Period means six months after termination of this Agreement. Revisions means modifications to the Software in the nature of improvements made to correct
program faults or other defects or to effect enhancements to the functionality of the Software.
Magnum IT Limited means Magnum IT Limited New Zealand Limited and includes its operating divisions, Magnum IT Limited Consulting and Magnum IT Limited Finance.
Schedule means a schedule to this Agreement. Services means the services to be provided by Magnum IT Limited as specified in a Schedule other than the
Service Level Schedule means any applicable Schedule to this Agreement which specifies agreed terms defining the minimum agreed levels for the provision of the Services.
Service Schedule means a Schedule to this Agreement which specifies the Services to be provided and any Excluded Services.
Software means machine readable instructions and data, licensed materials, user documentation, user manuals and operating instructions and in particular the specific software described in a Schedule and includes any Revisions.
Software Licence means any licence or sub licence issued to you in respect of the use of Software.
Supplies mean any Goods, Services, Software, Software Licences or Software Installation, Maintenance and Support supplied by Magnum IT Limited to you in accordance with this Agreement.
Term means the term of this Agreement specified in the Products and Services Summary including any run on period applicable under clause 3.1.
Time and Materials Charges means Charges for labour, at specified hourly rates, and Charges for materials as specified in a Products & Services Summary.
You means the customer specified in writing on the Product & Services Summary under the Acceptance section.
27 Precedence of Conditions
27.1 In the case of any conflict between any Service Schedule and this Agreement, the Service Schedule shall prevail. In the case of any conflict between a Service Schedule or this Agreement and the terms of any separate written agreement between Magnum IT Limited and you or the terms of any Products & Services Summary accepted by you, the terms of such separate agreement or Products & Services Summary shall prevail.
28 Entire Agreement