Terms and Conditions
Terms and conditions
BlueBerryIT wish to draw your attention to the following legal statements and conditions that constitute the legal obligations of all parties to this contract.
This Agreement is governed by the laws of New Zealand and the New Zealand Courts shall have exclusive jurisdiction. In this Agreement the following terms are defined as:
Agreement This Agreement including the schedules and amendments to those schedules.
Authorised person The name and position of staff, sub-contractors or agents who are authorised to request service under this Agreement.
Business day All days other than Saturday and Sunday on which registered banks are open for business in New Zealand.
Business hours The hours between 08:30am and 5:00pm on a business day in New Zealand.
Critical function A function delivered by the systems environment that would substantially prevent the business from operating when not available.
Critical person Critical person is defined as someone whose inability to access systems as expected would significantly prevent the business from operating.
Environment The type and quantity of computer equipment, the software applications operating, the systems configuration and where it is located.
Excess Charges Referred to in the document as contract customer preferential rate charge. This means the hourly rate at which the customer is charged for all effort expended in excess of the pre-paid hours included in the BerryCare product purchased.
Force majeure event Force majeure events are circumstances including, but not limited to, interruptions to or surges in power supply, electrical faults, fire, wind, flood, riot, war, pestilence, industrial action or defaults of manufacturers, suppliers, shipping agents or companies, government, customs authorities, port employees or contractors, or transport restrictions.
Service This is what the supplier contracts to do for the customer in terms of the outcome, the service requirement, availability and when it is carried out.
This agreement appoints BlueBerryIT as the exclusive provider of IT services to the customer. Whilst this agreement is in force no other IT provider shall be permitted to perform work on the customer’s IT environment without the prior knowledge and approval of BlueBerryIT.
- Contract set up
In prospecting for business all effort expended in consultation, service proposal, negotiation and contract confirmation services prior to the customer delightedly accepting the BlueBerryIT service offering will be provided free of charge.
At the commencement of the support contract it may be necessary for BlueBerryIT to perform a site audit for any customer sites that it has no detailed existing knowledge of. All effort required to perform this site audit up to a maximum of 4 hours will be provided free of charge.
Should the scale or complexity of the customer’s site be such that this allocation of time is exceeded or it is obvious to all concerned prior to commencing the audit that this allocation will be exceeded BlueBerryIT reserves the right to charge for all effort in excess of 4 hours at an hourly rate per hour or part thereof of not more than the lowest customer preferential rate prevailing at that time. Rates are available from BlueBerryIT on request.
- Contract Term and Continuation
4.1 All BlueBerryIT contracts shall remain in force for a minimum of 24 months from date of commencement [or as detailed in this agreement]. Thereafter the agreement shall automatically renew for successive 12 month terms until and unless terminated by written notice in accordance with 5.1 below.
4.2 Each contract has an annual price review and the contract shall be reviewed on the 12 month anniversary accordingly and any price increase agreed.
4.3 At the end of the agreed term the customer will be invited to renew for the following period. Should the customer require BlueBerryIT will roll over the terms and provisions of the existing contract for a period of one month in order to allow time for discussions on a new contract. This concession is made in the expectation that a new contract will be agreed within that time period.
- Contract termination
5.1 Following the completion of the initial agreed term either party may terminate this agreement by giving 60 days’ notice in writing of intention to terminate, or payment in lieu of such notice. If no notice to terminate is served by either party following the end of the initial term then the contract shall automatically renew for a further 12 month period and for each subsequent 12 month period thereafter where no notice to terminate has been received.
Either party may terminate for cause by notice in writing in the following circumstances:
5.2 Immediately if the other party becomes insolvent
5.3 Immediately if the other party appoints a receiver or manager of any of their assets.
5.4 Immediately if ownership or effective control of the other party is transferred, where such transfer substantially adversely affects the other party’s ability to perform its obligations under this agreement.
5.5 Immediately if either party commits a material breach of the obligations under this agreement and fails to remedy that breach within 21 working days of being notified of that breach.
- Customer’s payments
1.1 The customer shall pay the monthly investment hereinafter referred to as the monthly charge, by direct debit (or as agreed following any review) on the payment dates specified without any deduction whatsoever including setoff or counterclaim.
1.2 The customer shall pay the supplier on demand for excess charges and out of pocket expenses.
1.3 BlueBerryIT will bill the customer for all additional effort expended over and above the agreed monthly charge. These excess charges are generated when the customer requests work be performed that exceeds their agreed pre-paid allowance. The customer will be expected to pay on demand subject to the prevailing invoice terms.
1.4 Once agreed and signed the monthly charge and the contract customer preferential rates, hereinafter referred to as the excess charge rates, shall remain fixed for the first 12 months of the contract. The monthly charge and the excess charge rates are subject to review during the term of the contract as per 4 above. However should a significant change occur in the customer’s environment or the customer requests a change to the services as agreed BlueBerryIT reserves the right to review the monthly charge and the excess charge rate at any time with reference to the following terms.
1.4.1 BlueBerryIT may give written notice to the customer specifying a new monthly charge and/or new excess charge rates proposed upon a change to the customer’s environment. Upon the new charges being agreed by both parties the payment instalment shall be adjusted and effective on the next payment date.
1.4.2 BlueBerryIT may give written notice to the customer specifying a new monthly charge and/or excess charge rates proposed upon a change to the service(s) provided. Upon the new charges being agreed by both parties the payment instalment shall be adjusted and effective on the next payment date.
1.5 BlueBerryIT may, one calendar month prior to the contract renewal date, give written notice to the customer specifying the new monthly charge and/or excess charge rates proposed. Upon the new charges being agreed by both parties the payment instalment shall be adjusted and effective on the contract renewal date.
1.6 The customer shall pay BlueBerryIT for out of pocket expense as follows:
1.6.1 For travel beyond a 15KM radius of Nelson CBD at the rate as notified by BlueBerryIT from time to time.
1.6.2 For postage and packaging of equipment despatched to the customer or customer’s agents.
1.6.3 For all third party costs incurred whilst working on the customer’s behalf such costs as may be reasonably considered to be applicable to the customer; for example licensing costs, telecoms connection charges, etc.
1.7 All payments to BlueBerryIT under this agreement shall be payable plus Goods and Services Tax and the customer shall pay to BlueBerryIT Goods and Services Tax payable by BlueBerryIT in respect of the monthly charge and other payments payable by the customer.
- Late payment
2.1 If the customer defaults in payment of the monthly tariff or other moneys payable hereunder for 10 business days then the customer shall pay on demand either a penalty fee of $250 or interest on the moneys unpaid from the due date for payment to the date of payment, whichever is the greater. The interest rate to be charged will be the prevailing Official Cash Rate set by the New Zealand Reserve Bank plus 10%.
2.2 BlueBerryIT will pass on to the customer any legal or debt recovery charges incurred in recovering or attempting to recover payment of outstanding amounts from the customer.
2.3 Late payment may also result in suspension of all or any services provided by BlueBerryIT until such time as all outstanding charges are cleared or an alternative agreement is reached.
- Performance and responsibility
The Customer shall at all times during the term of this Agreement:
8.1. Immediately provide written notice to BlueBerryIT of any changes to their environment. Upon receipt of such information BlueBerryIT shall update relevant documentation accordingly.
8.2. In the event that changes affecting the performance, utilisation and maintenance of the environment are made by the customer or, the customer’s sub-contractor or agent, then the customer shall provide complete and accurate documentation to BlueBerryIT describing such changes.
8.3. Ensure that their environment has effective protection against computer viruses and unauthorised access.
8.4. Unless covered by this Agreement, ensure that an adequate backup of programs and data is maintained in a secure location.
8.5. Ensure that unlawful material is not stored on computer equipment that may be located in BlueBerryIT’s offices.
BlueBerryIT shall at all times during the term of this Agreement:
8.6. Perform the services and obligations under this Agreement with reasonable care and skill using sufficient, suitably trained and qualified employees and/or contractors.
8.7. The consequence of the customer not performing their obligations in part 6 above may adversely affect the ability of BlueBerryIT to carry out it’s obligations under this contract and deliver the services as agreed. In such circumstances BlueBerryIT will advise the customer accordingly detailing the issues experienced and requesting remedial action.
- Force Majeure
The customer and/or the supplier may suspend their respective obligations to perform this Agreement if either is unable to do so as a direct result of an act of God or other circumstances of a similar nature beyond its reasonable control such as force majeure events. Any such suspension of performance must be limited to the period during which the applicable event continues.
- Confidential information
10.1. BlueBerryIT acknowledges the confidential nature of the customer’s business and will not use, copy or disclose any confidential information other than:
a) As required by law.
b) In good faith and as is necessary to carry out its obligations under this Agreement.
c) Information that is in the public domain.
d) To its legal advisors if to do so is necessary or expedient in relation to any proceedings or possible proceedings.
10.2. BlueBerryIT shall take all practicable steps to ensure that none of its employees, or agents or sub-contractors uses any confidential information except as authorised by this Agreement.
8.1. BlueBerryIT shall upon request by the customer and upon termination or expiry of this Agreement, return all confidential information to the customer.
8.2. Ownership of all documentation comprising, but not limited to, diagrams, programs, procedures and specifications which are necessary to perform the obligations of this Agreement shall remain the exclusive property of BlueBerryIT at all times. The content remains confidential between BlueBerryIT and the customer and may not be shared or disclosed to any third party in any form without the prior approval and written consent of BlueBerryIT.
9.1. Exclusion of liability
Neither BlueBerryIT, nor its employees, agents nor sub-contactors shall be liable to the customer or any other person whether in contract, tort or otherwise (and whether arising directly or indirectly) for any loss of revenue, anticipated savings or consequential loss whatsoever.
9.2. Should the limitation referred to in clause 10.1 not prevail for any reason whatsoever, then the liability of BlueBerryIT shall never exceed the amount paid to it by the Customer under this particular Agreement in the immediate six months prior to any notice of the claim being made against BlueBerryIT. Provided that this provision shall always be read subject to the obligations of the customer in relation to its Insurance policies which shall prevail.
9.3. Assignment by supplier
BlueBerryIT may assign any monies payable to it under this Agreement to any third party free from any right of set-off or equities between it and the Customer.
In the event that any of the terms, conditions or provisions of this Agreement shall be deemed to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall be severed from the remaining terms, conditions or provisions which shall continue to be valid, lawful and enforceable to the fullest extent permitted by law.
9.5. Warranties and parts
9.5.1. In the event that equipment supplied to the customer by BlueBerryIT fails and is covered by a manufacturer’s warranty, then BlueBerryIT will arrange for the relevant parts of the equipment to be replaced and installed under the terms and conditions of this Agreement. The customer shall be required to provide proof of purchase where equipment has not been supplied by BlueBerryIT and BlueBerryIT shall make its reasonable endeavours to obtain the necessary parts.
Labour costs will be applied relative to the terms and conditions of the manufacturer’s warranty. If the warranty is for parts only then costs incurred in recovering the failed part and installing the replacement part including all associated fees and disbursements will be charged to the customer.
9.5.2. In the event that equipment fails which is not covered by a manufacturer’s warranty, then BlueBerryIT may install replacement equipment and/or parts according to the customer’s instruction and the customer shall be charged as applicable.
9.5.3. All warranties, terms and conditions (including, without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are hereby excluded to the extent permitted by law.
- Electronic messages from BlueBerryIT
10.1. Subject to clause 11.2, the Customer consents to receiving from time to time, electronic messages from BlueBerryIT which market or promote BlueBerryIT’s goods and services.
10.2. BlueBerryIT will cease to send electronic messages as described in clause 11.1 above to the Customer if at any time the Customer instructs BlueBerryIT in writing to cease sending such electronic messages to the Customer at those electronic addresses.
10.3. BlueBerryIT will include a functional unsubscribe facility in any electronic messages sent to the Customer which market or promote BlueBerryIT’s goods and services.
- Consumer Guarantees Act — Important Notice
If the Customer is acquiring or holding itself out as acquiring goods or services under this Agreement for business purposes, then the Consumer Guarantees Act 1993 will not apply.
- NO WARRANTIES
All warranties, terms and conditions (including, without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are hereby excluded to the extent permitted by law.
The Customer shall not assign its rights under this Agreement without the prior written consent of BlueBerryIT.
- ENTIRE AGREEMENT
This Agreement constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
- DISPUTE RESOLUTION
15.1. Where any dispute arises between the parties concerning this Agreement or the circumstances, representations, and conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 16.
15.2. The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must, within seven days’ receipt of the notice, give written notice to the first party naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.
15.3. If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to arbitration in terms of the Arbitration Act 1996.