Stratus New Zealand Limited
STANDARD TERMS AND CONDITIONS- 2018
FOR HARDWARE & SOFTWARE SALES, MANAGED SUPPORT SERVICES, ONSITE/REMOTE IT SUPPORT, CLOUD AND HOSTED IT, & SOFTWARE RELATED SERVICES
By utilising any service provided Stratus New Zealand Limited (“Stratus”) you become a Stratus Customer (“Customer”) and you agree to accept the Terms and Conditions set out below which will govern the contractual relationship between us. Where a Product or Service for which you have applied is subject to specific terms and conditions published on our Website, the specific terms and conditions (as amended from time to time) shall form part of this Agreement.
Every request for Products, Services and Customised Software shall be made on an Order Form which on acceptance by Stratus shall form a separate contract between the parties comprising these terms and conditions and the Order Form.
In these terms and conditions, references to “us”, “our” and “we” are references to Stratus, and references to “you” and “your” are references to you.
- “Agents” means any contractors, providers, dealers or agents appointed by Stratus to perform any of Stratus’s obligations under this Agreement.
- “Agreement” means this Agreement and includes all Schedules and Appendices attached to it or incorporated in it by reference;
- “Billing Period” means the period of time Stratus invoices and reports are based on. This is one Calendar Month;
- “Bugs” are reliably demonstrated errors or omissions in the Product that cause the Product to function in a manner that does not correspond with a published specification; and which adversely affect the efficient use of the Product by the Customer; and which can be duplicated on Stratus equipment;
- “Charges” means all monthly charges, services costs, and product costs payable to Stratus in accordance with this agreement.
- “Commencement Date” means the date as shown on the front of this Agreement;
- “Confidential Information” means any information, whether this information is relevant or not, which is disclosed by Stratus to you or of which you become aware of directly or indirectly that relates to the provision of the Services by Stratus.
- “Customised Software” means software specifically developed for you.
- “Due Date” means the 20th of the month following the date of invoice;
- “Equipment” means the computer hardware or other equipment specified in an Order Form.
- “Effective Date” means the date this Agreement comes into force being the date on which it is signed by both parties;
- “Initial Term” means the Initial Term set out in the schedules;
- “Normal Working Hours” means 8:00 am to 5.30pm Monday to Friday inclusive, excluding public holidays in Auckland.
- “Order Form” means a form provided by Stratus or otherwise approved by Stratus and used by you to request Services.
- “Products” means the Equipment and the Software.
- “Services” means the services specified in the Order Form, including project management, quality assurance, network and system design, system audits, & engineering services.
- “Use” means install, run, access, display or otherwise interact with software, on a single computer, workstation, terminal or other electronic device.
- “Software” means any software developed or supplied by Stratus but does not include Customised Software.
- “Workarounds” are instructions or procedures to limit or negate the effects of a bug until such time as a bug fix can be provided.
2.1 By requesting Products, Services and/or Customised Software to be provided by Stratus, you have agreed to be bound by the following terms and conditions. You acknowledge that if any further Products, Services and/or Customised Software are requested, that these terms and conditions apply.
2.2 If you are ordering Products, Services and/or Customised Software on behalf of a company, you are representing that you have the requisite authority to enter into an agreement on behalf of the company.
3.0 BUSINESS AND DOMESTIC USE
4.1 These terms and conditions apply to both the private and business use of the Products, Services and Customised Software. If you are not acquiring these for the purpose of a business (as defined by the Consumer Guarantees Act 1993) then that Act applies and nothing in these terms and conditions limits your rights under it.
4.0 STRATUS’ COMMITMENT TO YOU
5.1 Whenever Stratus provides Services to you Stratus is committed to:
(a) providing the Services within a reasonable time or within the time limit specified in the Order Form;
(b) providing the Services with reasonable care and skill;
(c) providing Services that are reliable although Stratus does not guarantee that any Services will be free of faults or will be continuous.
5.0 YOUR RESPONSIBILITIES TO STRATUS
6.1 Whenever Stratus provides Services to you, it is your responsibility to ensure that:
(a) any information you have given Stratus is correct and complete;
(b) any directions given regarding the use of the Services are followed;
(c) the Services are used for lawful purposes; and
(d) any user of the Services complies with these terms and conditions.
6.0 DELIVERY OF SERVICES
7.1 Stratus will make genuine reasonable commercial efforts to supply the Services specified in any Order Form. You acknowledge that any specified times are approximate and time is deemed not to be of the essence. You agree that Stratus will not be liable for failure to deliver or delay in delivery due to factors outside the reasonable control of Stratus.
7.0 PAYMENT OBLIGATIONS
8.1 In return for the provision of our Services, you agree to pay the charges specified in the Order Form. In particular you agree as follows:
(a) You agree to pay for the Services regardless of who uses them;
(b) You will be billed for Stratus’ charges no less frequently than on a monthly basis for the Services for the previous month unless agreed in writing by both parties that payment will be due on completion of the work undertaken by Stratus. You are required to pay your bill by the due date for payment that appears on the bill;
(c) Should you dispute any of the charges appearing on your bill, please contact Stratus before the due date of payment. You will not be required to pay the queried part of the bill while Stratus investigates this matter. If Stratus agrees that there has been a mistake, Stratus will adjust your next bill or issue a credit note. If the due date for payment has already passed then you will be required to pay any outstanding amount immediately; and
(d) If you have not paid your account by the due date, Stratus reserves the right at its sole discretion, to charge you a fee equivalent to 10% of the unpaid portion of your account. You agree to pay interest charges on overdue accounts and Stratus reasonable costs incurred in recovering outstanding amounts from you, including debt collection and legal fees.
(e) Where overdue invoice amounts exist, Stratus reserves the right to suspend the provision of all Services and Products until outstanding moneys are paid in full.
8.0 NOTICES AND VARIATIONS OF CHARGES, TERMS & PRICING PLANS
8.1 In relation to any notices and variation of charges, terms and pricing plans for the provision of any Products, Services and Customised Software by Stratus, you agree to the following:
(a) We will send you notices and other documentation to the last known address, fax number or email address you have given to us. We may elect to leave a message on your Voice Mail service directing you to contact our Sales mainline or to visit our Website for details;
(b) We reserve the right to increase/decrease or remove any of our charges and/or benefits from time to time and/or introduce new charges from time to time. If we increase our charges or introduce new charges, we will not be required to give you any written or verbal notice;
(c) We reserve the right to remove or change any Pricing Plans we may have offered from time to time and either replace them with new Pricing Plans or move you on to the most similar or suitable Pricing Plan then on offer to our customers, we will not be required to give you any written or verbal notice;
(d) We may amend or replace these terms and conditions from time to time. The amended or replaced terms and conditions will then apply to the Services. We will tell you about this by posting the amended or replaced terms and conditions on our website. You will be bound by the amended or replaced terms and conditions even if you are unaware of the amendments or replaced terms and conditions. If you are in any doubt as to the current terms and conditions that apply to the Services please visit our Website or contact our Sales mainline. Please contact our Sales team at any time for a free copy of our current terms and conditions;
9.0 PROVISION OF EQUIPMENT
Unless otherwise agreed by the parties in writing, during the delivery of any Equipment and while the Equipment and any of your own equipment or software is held on your behalf by Stratus, you shall bear the risk of and you agree to carry adequate insurance against any loss or damage to the Equipment and to any of your own equipment and/or software (as the case may be), regardless of whether you have paid for the Equipment.
If the consent of your landlord is required for the installation of any Equipment, you will obtain this consent before installation occurs.
9.3 Reservation of Title
You agree that no legal or equitable title in any Equipment will pass to you until payment in full is received by Stratus for that Equipment.
9.4 Payment by a Third Party for Equipment
If you receive payment from a third party for any Equipment provided by Stratus, you agree that this payment belongs to Stratus and that you are holding any sum received in trust for Stratus. You agree to inform Stratus that any such payment has been received and ensure payment to Stratus of this amount is effected immediately.
9.5 Recovery of Equipment
You agree that failure to pay for any Equipment provided by Stratus will entitle Stratus, at any time, to recover and retake possession of the Equipment and to exercise all its rights as owner and/or unpaid seller. You also agree that you irrevocably authorise and license Stratus and its servants or agents to enter any land or building where the Equipment is installed for the purpose of either inspecting the Equipment and/or repossessing it.
9.6 Your Responsibilities in Relation to Equipment
You will be responsible for any loss, damage and deterioration of the Equipment provided by Stratus due to any cause whatsoever after the Equipment has been delivered. For the avoidance of doubt, this clause in no way affects your insurance obligations as outlined in clause 9.1.
9.7 Returns Policy
Stratus offers a 7-day return policy on selected items based on manufacturer return policies. Refer to Stratus for more information. No returns will be accepted without a Returns Merchandise Authorisation (RMA) number. Contact Stratus for RMA. All products returned must be 100% complete, contain original boxes and packaging materials, have original UPC codes on boxes, contain all manuals, blank warranty cards and other accessories and documentation provided. The customer is responsible for shipping charges on return items, and ensuring insurance cover for returned items while in transit.
9.8 Restocking Fee
Stratus reserves the right to charge a re-stocking fee to a maximum of 20% of the price that a returned product was sold at. This charge is for the purpose of recovering incurred cost due to administration and to cover any restocking fees imposed by distribution partners.
9.9 Damaged on Arrival
If merchandise arrives damaged: it is best to REFUSE it back to the carrier attempting delivery. If you accept the package make sure it is noted on the carrier’s delivery record in order for Stratus to file a damage claim. Save the goods and the original box and packing it arrived in, notify Stratus immediately to arrange for a carrier inspection and a pickup of damaged goods. If you do not notify Stratus of damaged goods within the first 5 days of arrival, our regular return policy will override any claim of damage, and will fall under all current manufacturer restrictions.
9.10 Faulty Product
Defective returns can be returned directly to Stratus within 14 days from the invoice date, at Stratus’ discretion for: credit, replacement, exchange or repair.
10.0 SOFTWARE RELATED SERVICES
10.1 Stratus will provide you with a non-exclusive, non-transferable licence to use the Customised Software on the following basis:
(a) You will use the software supplied by Stratus in accordance with the documentation provided by Stratus and only for the number of users permitted and will inform Stratus should you require any additional licences;
(b) You will not copy any Customised Software and you will not utilise the back-up copy unless the original Customised Software is corrupted or loss occurs;
(c) You are not entitled to resell or transfer any Customised Software;
(d) You will not reverse engineer, disassemble, decompile, modify, adapt, or otherwise attempt to discover the source code of any Customised Software;
(e) You are not entitled to assign, rent, lease or lend any Customised Software without the prior written consent of Stratus;
(f) You will return all copies of any Customised Software or destroy copies of any Customised Software should you be required to do so for either not complying with these terms or conditions or due to termination occurring;
(g) Any Customised Software labelled as an upgrade replaces and/or supplements and may disable the original software provided by Stratus that formed the basis of the upgrade. Any upgraded software is subject to these terms and conditions; and
(h) In conjunction with section 10.1(a) you acknowledge that all title in the Customised Software (including but not limited to any images, animations, photographs, video, audio, music, text and applets) and any accompanying materials and copies accessed through this material, is and shall remain the property of Stratus.
11.0 INTELLECTUAL PROPERTY RIGHTS
11.1 In relation to the provision of any Products, Services and Customised Software by Stratus, you agree to the following:
(a) All and any right, title and interest and all intellectual property rights (including without limitation copyright) in such Products, Services and Customised Software will be and remain the property of Stratus or its licensors or suppliers. To the extent that the Copyright Act 1994 does not vest copyright in any Products, Services or Customised Software (where not already owned by a third party) you hereby assign to Stratus all right, title and interest in such Products, Services and Customised Software;
(b) You agree not to challenge or attack the validity of, nor challenge the rights of Stratus in relation to the intellectual property referred to in clause 11.1(a) as being the property of Stratus; and
(c) You will not supply any property or introduce any information for use by Stratus in relation to the provision by Stratus of Products, Services, or Customised Software that would breach confidentiality or infringe the intellectual property rights of a third party. You agree to indemnify and hold Stratus harmless against all losses, claims, or any expenses suffered by Stratus as a result of any breach of this clause 11.1(c).
12.0 CONFIDENTIAL INFORMATION
12.1 Each party will:
(a) ensure that all information, including but not limited to plans, reports, opinions, projections and network recommendations contained in any document or electronic storage system which includes Confidential Information is kept strictly confidential and neither party will use the contents in any way other than for the purpose for which the information was disclosed;
(b) not give Confidential Information, or allow Confidential Information to be received, by any person who is under a duty to communicate this information to another person; and
(c) not use Confidential Information for any purpose other than that for which it was provided. If uncertain you agree to obtain permission from Stratus. .
12.2 Each party agrees to return to the other party on demand, all Confidential Information in whatever form (including all copies) that is in the former party’s control.
12.3 Each party shall take all reasonable care to ensure that all materials in its possession that contain confidential information are kept secure.
13.0 USE OF PERSONAL INFORMATION
13.1 (a) If you are an individual, you authorise Stratus and its agents to collect information about you to be held at Stratus’ head office. You agree that this information can be used for statistical analysis, research and Stratus’ marketing purposes. You also authorise Stratus and its agents to seek, supply and disclose information in relation to your credit-worthiness;
(b) Stratus recognises that under the Privacy Act 1993 you can request access and require correction of your personal information. Any such request must be written and Stratus reserves the right to charge a fee for any reasonable costs incurred in responding to your requests (any costs will be disclosed for your acceptance before they are incurred).
14.1 Stratus warrants that the Services will be provided as defined in the Order Form but Stratus will not be responsible for the compatibility of any Products with other products unless Stratus has expressly agreed otherwise in writing. Stratus will not be responsible for any failure of the Services if the failure is a direct or indirect result of the inability of your software or hardware to operate correctly.
14.2 Stratus warrants that all Services will be provided in a careful and skilled manner.
14.3 Subject to clauses 14.1 and 14.2, Stratus’ sole warranty is to correct any errors arising out of the negligent supply of any Services, within a reasonable time. Stratus liability under this warranty shall be limited to the Services originally specified in the Order Form.
14.4 You may be required to sign an installation certificate when Products or Customised Software are installed by Stratus that indicates that the installation is complete.
15.0 LIMITATION OF LIABILITY
15.1 In no event will Stratus be responsible for any consequential, incidental, indirect or special damages whatsoever, including but not limited to any damages for the loss of business profits, loss of business information, business interruption or other pecuniary loss, even if Stratus has been advised of the possibility of such damages.
15.2 Stratus’ maximum liability under any contract formed (which contract comprises an Order Form and these terms and conditions) shall be the amount payable for the Products, Services or Customised Software specified in the Order Form the subject of that contract.
16.0 GOVERNING LAW AND JURISDICTION
These terms and conditions are governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand. You agree that if any part of these terms and conditions is found to be void and unenforceable, it will not affect the validity of the balance of these terms and conditions.
17.1 Without prejudice to any other rights, Stratus reserves the right to:
(a) Terminate any Services provided to you immediately, if you have failed to comply with these terms and conditions; or
(b) Stop providing Services to you due to your failure to meet your obligations for payment.
17.2 After the Initial Term, either party may also terminate this Agreement providing 30 days written notice.
17.3 This Agreement may be terminated at any time by mutual agreement.
18.0 CONSEQUENCES OF TERMINATION
When this agreement is terminated:
18.1 Your Service will be discontinued;
18.2 Each party will immediately return to the other any information, equipment or any other item which is in its possession and belongs to the other party;
18.3 If you terminate this agreement within the Initial Term, Stratus may require you to pay:
(a) An amount equal to the value of the fixed Charges that would have otherwise been payable from the date of termination to the end of the Initial Term;
(b) If any set up or installation charged have been waived, the amount of that set up or installation charge divided by the total number of months of the Initial Term multiplied by the number of months remaining within the Initial Term at the time of termination; and
(c) Any and all 3rd Party charges Stratus is liable for. You agree that these amounts are a realistic and genuine estimate of the loss likely to be suffered by Stratus upon early termination.
18.4 On termination of this Agreement, you will pay any reasonable Charges for Services provided up to the time of disconnection which have not been previously paid.
19.0 FORCE MAJEUERE
Stratus will not be liable for any failure or omission to provide any Services due to any cause reasonably outside the control of Stratus
20.0 AGENTS OF STRATUS
(a) We shall be entitled to subcontract or delegate the performance of any of our rights or obligations under this Agreement but any such subcontracting or delegation will not relieve us from liability for performance of any such obligation. Without limiting this, we may appoint an agent to provide billing services (including credit checking and control) and customer services.
(b) Invoices issued by our Agent will be binding on you and payment of those invoices in full to our Agent will be a valid discharge of your liability to pay those invoices under this Agreement.
(c) Our Agents can enforce those obligations expressed to be for their benefit in accordance with applicable laws within the appropriate jurisdiction.
21.0 CREDIT REFERENCES AND PROVISION OF RELATED SERVICES
(a) You authorize us to check 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.
(b) 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 connection to our network.
(c) 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.
(d) When you ask for any additional services, we can ask for further credit referee(s) and/or a security deposit for that service and may also impose a credit limit.
(e) We may decline your application (and/or any request for additional services, or provide a restricted service at our discretion and we do not have to disclose our credit criteria or the reasons for our decision.