Definitions and Interpretations
- The following terms have the following specified meanings:
Confidential Information means regardless of the form of disclosure or the medium used to store it, any sensitive information received by a Party relating to the other Party or their business (current and future), including information provided before the date of this MSA and any copies of the information or material derived from that information, passwords, codes and includes the terms of this MSA.
Fees means the fees and charges payable by the Client in accordance with clause 11;
Force Majeure Event means an event that is caused by an act of God, natural disaster (including earthquake), fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining any raw materials, energy or other supplies, labour disputes of whatever nature and any other reason beyond the control of either Party, provided that failure to pay any money owing under this MSA will not be a Force Majeure Event;
ICT Infrastructure means the Client’s integrated communications technology infrastructure; Initial Term means the initial term defined in each additional Schedule agreed between the Parties;
Party means Ohnyx or the Client, or both as the context requires;
Products means any products provided by Ohnyx to the Client and includes the products specified in any additional Schedules; Schedule(s) means any Ohnyx Service Schedule signed by the Client and Ohnyx describing the Services provided by Ohnyx to the Client;
Services means all services provided by Ohnyx to the Client and includes the Services specified in any additional Schedules;
Statement of Work means any statement of work signed by the Client and Ohnyx, describing the Services to be provided by Ohnyx to the Client;
Working Day means a day that is not a Saturday, Sunday or statutory holiday (which includes the provincial anniversary day applicable to any affected Client site or Ohnyx site from where the Services are delivered).
- All other capitalised terms will have the meaning set out in this MSA.
- In this MSA, unless the context requires otherwise:
- References to clauses, annexures, attachments and schedules are to clauses, annexures, attachments and schedules of this MSA;
- the headings to clauses (unless otherwise specified) are not substantive in construing this MSA;
- the plural includes the singular and vice versa;
- derivatives of any defined word or term have a corresponding meaning;
- “including” and similar words do not imply any limitation;
- an agreement, representation or warranty on the part of two or more persons binds them or is for the benefit of them jointly and severally as the case may be;
- reference to a person includes any other entity recognised by law and vice versa;
- where a word or phrase is defined its other grammatical forms have a corresponding meaning;
- Words denoting any gender include all genders;
- Reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.
This MSA supersedes all previous agreements or undertakings either written or verbal, with the intent of solely incorporating the terms and conditions regards provision of agreed Ohnyx Services and Products.
- Ohnyx will, in providing Services and Products:
- carry out all obligations with due care, skill and diligence
- use all reasonable endeavours to meet or exceed the service level targets but Ohnyx does not warrant that Services will be uninterrupted or error free
- employ techniques, processes and materials of a high quality and standard in accordance with the applicable Schedules and good industry practice, required to provide the Services;
- ensure that all information and material of the Client in the custody of Ohnyx for purposes in relation to the Services, will be protected at all times from unauthorized access or use by third parties, or misuse, damage or destruction by any person,
- maintain all licenses, approvals and permits required to provide the Services, and
- comply with and conform to notified health and safety policies, staff codes and security practices as are reasonably requested by the Client, when on Client premises.
- The Client will:
- only use the Services for lawful purposes and not to infringe any third-party rights (including regards privacy, defamation, fraudulent purposes);
- follow Ohnyx’s reasonable instructions about the use of Products and/or Services and be responsible for all Products to avoid any damage while they are on Client premises;
- not sell, rebill or otherwise provide the Services to a third party without first obtaining Ohnyx written permission;
- delegate an employee as Ohnyx’s point of contact and advise Ohnyx in writing of any change;
- provide reasonable access to enable Ohnyx to provision and/or maintain Services or Products while on Client premises:
- comply with all applicable specifications and performance warranties;
- maintain responsibility for all Client licensing compliance requirements, and any penalties, licence fees, audit charges and costs incurred, where any non-compliance is identified;
- ensure all information supplied to Ohnyx is accurate and complete;
- promptly inform Ohnyx of any Service failings; and
- comply with and conform to notified health and safety policies, staff codes and security practices as reasonably required by Ohnyx.
- Neither Party will be liable for any delays or non-performance under this MSA caused by a Force Majeure Event, provided that each Party has taken all reasonable steps to minimise any loss, damage or delay resulting from a Force Majeure Event.
- If a Force Majeure Event affects either Party, the affected Party must immediately inform the other Party of the circumstances and may request the other Party’s approval to extend time for the performance of the affected Party’s obligations under this MSA by a period of up to the same duration of the Force Majeure Event. The other Party will not unreasonably withhold approval of any such request.
- When a Force Majeure Event occurs, which causes delays in the supply of the Services and/or Products and such delays continue or are likely to continue for a period greater than thirty (30) Working Days after receipt of notification of the Force Majeure Event, either Party may by notice to the other terminate the Services and/or Products or any part of the Services and/or Products affected by the Force Majeure Event.
- If as a result of, or immediately following a Force Majeure Event, or in any other event where Ohnyx is required to provide Services, provisioning, or expedite design and implementation processes on an urgent basis, Ohnyx will use all best endeavours to capture and include all relevant solution components and costs from the outset of the instructions and provide accurate costing for the same. The Parties acknowledge that due to operating in these type of circumstances Ohnyx reserves the right to amend the charges or estimate of costs provided, on the basis of any component or cost that has been omitted or altered in such operating circumstances. The incurred charges will be backdated at the correct rates. Where an increase in cost occurs or is required, Ohnyx will where possible first contact the Client and agree the same, prior to any such additional costs being incurred.
Warranties and liability
- Ohnyx disclaims any warranty of merchantability or fitness for a particular purpose in connection with the Client’s purchase of Products or Services under the MSA.
- Ohnyx will not be liable for the following:
- Client breach of this MSA;
- Client attempts to modify or misapply or subject the Products to any unusual or non- recommended use, servicing or handling;
- Client attempts to alter or modify any data or information provided by Ohnyx while delivering the Services and/or Products;
- any act or omission of any Client subcontractor, supplier or service provider;
- indirect or consequential loss of any kind, loss of profits or for any business interruption;
- non-compliance by the Client with the terms of any written warranty, manufacturer instructions or end user license agreement;
- Ohnyx non-performance due to reliance on information or data incorrectly supplied by the Client;
- Any loss to the extent caused by the acts or omissions of the Client.
- Ohnyx’s total liability for defective or damaged Products is limited at Ohnyx’s option, to replacing or repairing the defective or damaged Products where still under manufacturer warranty.
- In the event of an intermittent fault, the Parties acknowledge the irregular nature of some computer faults can make the fault difficult to diagnose other than by a series of replacements of different system components, or a stepped approach in software changes in isolating the cause. The non-appearance of an intermittent fault during testing does not necessarily mean the fault has been fixed. A successful repair may involve more than one service/part replacement before the fault is completely eliminated. Ohnyx technicians will use reasonable endeavours to eliminate the most likely reasons for the fault first. Where the cost of removing parts used in trying to eliminate a fault could potentially exceed the value of the part, Ohnyx will recommend replacement of that part. In the event any part is replaced under warranty, a labour only cost will be incurred for the time taken to replace the part.
- Notwithstanding any other provision in this MSA, the maximum total liability of one Party in respect of claims to the other Party, under or in connection with this MSA, in contract, tort (including negligence) or otherwise, in any 12 month period will be limited to 50 per cent of the Fees actually paid by the Client to Ohnyx for the Services and/or Products (excluding GST and disbursements) during that 12 month period. Neither Party will be liable for any breach to the extent that the breach is attributable to the prior default, negligence, misconduct or breach of the other Party (and/or its employees and agents) or any indirect or consequential loss, loss of profits or for any business interruption or loss of data. All claims must be formally notified to the other Party within six (6) months of the relevant incident.
- The above limitation of liability will not apply, and the Client will indemnify and hold Ohnyx harmless with respect to any liability or loss suffered by Ohnyx as a result of any actual or threatened claim by a third party (including any claim in defamation, infringement of property rights or license agreements, invasion of privacy or access to or alteration of private records and data) arising from the use of Ohnyx Services, transmission of data or messages by the Client using Ohnyx Services, or regarding any obligation for the payment of Fees (including interest on any overdue Fees) under this MSA.
- Each Party will take all reasonable steps to mitigate any loss or damage it may suffer under this MSA.
- The Client confirms the Services and/or Products are acquired for the purpose of a business (as defined in the Consumer Guarantees Act 1993).
Ownership and risk of products
- Ownership of any Products purchased, will pass to the Client on full payment to Ohnyx. Until full payment is made, the Client will hold the Products as fiduciary for Ohnyx and authorises Ohnyx and its’ agents to enter the Client’s premises to uplift and remove the Products and resell them if necessary in the event of non- payment. The Client indemnifies Ohnyx and its’ agents against any liability incurred in connection with such entry and removal.
- Risk in the Products will pass to the Client on the earlier of; when the Products are delivered to the Client or its’ carrier or when the Client pays for the Products. The Client will fully insure the Products for replacement value from the time the Products are in the Clients’ possession.
- The Client will grant Ohnyx a security interest in the Products, as security for payment of the Products, and for any other amounts that may be owing by the Client to Ohnyx. The Client agrees this MSA constitutes a security agreement, conferring a security interest in favour of Ohnyx regards any property provided by Ohnyx to the Client under the MSA.
- Ohnyx will accept a request for credit or return for Products incorrectly ordered, provided such Products are returned in as new condition, in the original packaging (unopened), unsoiled and undamaged.
- Ohnyx may in its discretion, accept requests for return of other Products, provided those Products are returned in as new condition, in the original packaging (unopened), unsoiled and undamaged. The Client may be required to pay a restocking fee of 10% of the current price and will be responsible for the delivery costs. Ohnyx will not accept a request for return of opened shrink-wrapped software.
- Subject to Confidentiality clause 2, each Party (including its agents and employees) will keep confidential and make no disclosure of the contents of this MSA and all information obtained from the other Party under this MSA or in the course of negotiating this MSA.
- Confidential Information may only be disclosed by a Party if:
- Appropriate written consent to the specific Confidential Information being released is obtained; or
- Disclosure of the Confidential Information is required by law or a Stock Exchange requirement; or
- The Confidential Information already is or becomes public knowledge (other than by breach of this MSA); or
- Disclosure is necessary to obtain the benefits of and fulfil obligations under this MSA.
- If either Party is required to make a disclosure it will before doing so, give the other Party the maximum notice reasonably practicable in the circumstances and ensure that the Confidential Information that is disclosed is kept confidential by the recipients.
- The Parties agree all intellectual property used by Ohnyx in providing the Services and/or Products is either the sole property of Ohnyx or Ohnyx is licensed to use. The Client will have no rights in respect of Ohnyx-owned intellectual property, but Ohnyx will ensure the Client is appropriately licensed to use such intellectual property, where necessary.
- All proprietary rights to inventions, patents, know how, designs, methodology or the knowledge arising from or developed by Ohnyx in the course of providing the Services and/or Products will vest or remain with Ohnyx as its’ sole property.
- Any intellectual property created by Ohnyx specifically for the Client under this MSA will belong to the Client upon payment in full. To the extent Ohnyx needs to use any such Client intellectual property to perform its’ obligations under this MSA, the Client will grant a license to Ohnyx for such use.
- Any intellectual property owned by the Client at the date this MSA is signed, will remain the property of the Client. The Client grants to Ohnyx an unrestricted, royalty-free, irrevocable license to use the Client’s intellectual property for the Term of the MSA, to the extent reasonably required for Ohnyx to provide the Services.
- Either Party may terminate a Schedule by providing ninety (90) days’ written notice to the other Party, following which clause 10.3 will apply.
- Either Party may immediately terminate a Schedule by written notice, if:
- the other Party materially breaches any of its obligations under this MSA and:
- the breach is incapable of being remedied; or
- the breach is capable of being remedied and the Party in breach fails to remedy the breach within twenty (20) Working Days of written notice being given to that Party; or
- the other Party enters into a composition with its creditors, is declared bankrupt, goes into liquidation, a receiver or manager or statutory manager is appointed in respect of it, any steps are taken towards its winding up, or it is unable to pay its debts when due.
- On termination of a Schedule:
- Ohnyx will immediately cease providing all or part of the Services and/or Products, unless otherwise agreed in writing;
- the Client will pay Ohnyx in full, any outstanding amounts owing (including any Fees and any amounts payable under Fees and Payment clause 4);
- the Client will return all Products or hardware leased from Ohnyx;
- Ohnyx will return to the Client all documentation, keys, security access cards and other such property belonging to the Client which may be in the possession or control of Ohnyx.
- The Client may request that Ohnyx assist the Client with the disengagement of the Services so that the Client is able to procure the same or similar services from a third-party supplier. Ohnyx will charge for such assistance at Ohnyx’s standard advertised rate at the time of termination.
Fees and Payment
- Ohnyx may begin invoicing the Client, in whole or in part once an Ohnyx Service and/or Product has been made available to the Client (despite any delays incurred as a result of the Client or any Client third party service provider).
- In consideration of the Ohnyx Services and/or Products provided, the Client will pay the Fees set out in the relevant Schedules or Statements of Work by the 20th of the month following the date of Ohnyx invoice, without set-off or deduction.
- If the Fees are not stated in a Schedule or Statement of Work, the Client will pay Ohnyx’s current market rates for the Services and/or Products.
- In the event of early termination, the Client will pay Ohnyx:
- for any Services and/or Products where Fees were to be paid by way of instalments over the entire Initial Term of any Schedule or Statement of Work (but which are not fully recoverable by Ohnyx due to termination) and
- Any amounts owing by Ohnyx to any third parties, when those amounts have been incurred on behalf of the Client, in connection with the Services and/or Products, and which have not been recovered in part or in full by Ohnyx, due to early termination of any Schedule. For the avoidance of doubt, these Fees will not be payable where Ohnyx terminates for convenience.
- The Parties agree and acknowledge that the Fees may be reviewed and all reasonable endeavours will be used to agree any necessary amendments to the Fees and/or where CPI changes are appropriate.
- The Parties agree Ohnyx is entitled to amend the Fees where the Services and/or Products are changed at the request of the Client or if Ohnyx has to pay a third party for anything used to provide the Services and/or Products to the Client or after the Initial Term of any Schedule is renewed.
- Applicable goods and services (GST) or similar taxes, will be payable by the Client in addition to the Fees.
- Other than in relation to disputed invoices, if payment in full for the Services and/or Products is not made by the due date, then without prejudice to any other remedies available to Ohnyx:
- Ohnyx may suspend the Services and/or withhold the further supply of deliverables;
- interest on all overdue Fees will be charged on a daily basis at the NZ official cash rate plus 3% per annum and will accrue from the due date for payment until payment in full is received by Ohnyx;
- The Client will be responsible for all costs incurred by Ohnyx in recovering overdue Fees.
- If the Client (acting reasonably) disputes any invoice it shall do so by providing written notice to Ohnyx and invoke the dispute resolution process set out below prior to the due date for payment of the invoice. The Client will promptly pay the undisputed portion of the invoice to Ohnyx.
- If any matter arises between the Parties concerning this MSA or an invoice submitted, the Parties will meet to discuss the matter and negotiate in good faith to resolve it promptly.
- Any matter which is not resolved by the Parties within five (5) Working Days of the date the Party raising the matter gave notice of it to the other Party, will be referred to mediation, before commencing any other form of dispute resolution proceedings. Either Party may serve written notice on the other, stating the subject matter and details of the dispute and requiring the dispute to be referred to an agreed mediator.
- Where the Parties cannot agree regarding a mediator, the mediator will be appointed by the Resolution Institute NZ. Each Party will bear their own costs in relation to mediation and pay half the costs of the mediation services.
- While Ohnyx provides Services to the Client, Ohnyx may collect and hold information about the Client and the Clients’ end users to the extent necessary for Ohnyx to perform or offer the Services or exercise rights under this Agreement. Such information may be obtained from the Client or generated within the Ohnyx network where the Client or anyone else uses Ohnyx Services. Ohnyx will comply with all obligations under the Privacy Act 1993.
- Ohnyx may share the information collected about the Client and the Clients’ end users with Ohnyx employees, agents, suppliers and network operators for a range of lawful purposes connected with Ohnyx’s business operations (including to provide the Services generally, and keeping the Client informed about new Services) or with law enforcement agencies where it is reasonably assessed that any unlawful activity is occurring in conjunction with an Ohnyx Service.
NON-SOLICITATION of Employees
- During the term of this MSA and for 3 months after the MSA ends, neither Party will solicit the employment of, or employ, any of the other Party’s employees without first obtaining that Party’s written approval.
- Ohnyx may change an existing Ohnyx Service from time to time, provided that change does not result in any material deterioration in the quality of the Service provided to the Client. Ohnyx will notify the Client of any material change to the Service.
- Any agreed amendments to this MSA or Schedules, including Fees, will be notified and agreed by both Parties in writing at least 30 days before taking effect.
- This MSA is governed by and construed in accordance with the laws of New Zealand and both Parties submit to the jurisdiction of the courts of New Zealand.
- The Client agrees that Ohnyx may outsource or subcontract any or all of the Services and/or supply of Products in its absolute discretion. The Client acknowledges that in some circumstances this may require Ohnyx to act and engage with third party suppliers on the Client’s behalf. The Client authorises Ohnyx to take any such actions, to the extent necessary in order to provide the agreed Services and/or Products.
- Notices required under this MSA will be in writing and sent to the relevant contact person at the address provided in this MSA (Contract Details). If sent by post to that contact address, it will be deemed to be delivered three (3) Working Days after it has been posted. If a notice is sent by fax or by email to that contact address, the notice will only be assumed delivered once a correct transmission confirmation slip or acknowledgement received. Notifications concerning termination, breach or default of the MSA may not be sent by email.
- The Parties may sign counterpart copies of the MSA all of which when signed and taken together will constitute a single agreement between the Parties. Transmission by scanning or electronic execution will be deemed proof of signature of the original by such Party and the electronically signed or scanned copy transmitted will be deemed an original.