ASPect Information Solutions

STANDARD TERMS AND CONDITIONS

ASPect Information Solutions Limited Standard Terms and Conditions
1) DEFINITIONS AND ACCEPTANCE
a) In this Agreement the following terms shall have the following meaning:
i) “ASPect-is” means ASPect Information Solutions Limited .
ii) “Client” means a person, firm, company or organisation at whose application ASPect-is agrees to provide Products under the terms of this Agreement.
iii) “Products” means all goods and/or services supplied by ASPect-is to the Client (at the Client’s request) from time to time.
iv) “Agreement” means the contract made between ASPect-is and the Client to which these conditions apply.
v) “Base Rate” means the annual base rate of interest from time to time in force as advertised by ANZ.
b) Any request or order for ASPect-is to provides Products or payment made for such Products constitutes acceptance of these terms and conditions.
c) These terms apply, unless otherwise agreed in writing, to the exclusion of and shall prevail over all and any other terms.
d) To the extent that is permissible in law, ASPect-is shall not be liable for any damage to property, costs, delay.
2) ORDERS, RENEWALS AND PAYMENT
a) All orders are subject to acceptance by ASPect-is. An order will be deemed accepted by ASPect-is when confirmation of the order or invoice is sent to the Client. ASPect-is may refuse to accept any order or renewal, or delay acceptance pending fulfilment of conditions ASPect-is may choose to impose. Such refusal or such conditions may not be unreasonable, however, and ASPect-is agrees to provide the Client with reasonable notice via email or fax of any intent to delay or decline the acceptance of any order or renewal.
b) ASPect-is will charge a 5% order administration fee on the net total of all orders placed. This fee may be discounted in part or in whole by prior agreement for those clients who accept electronic invoices (pdf or html by email) for all orders and / or make payments for all orders by Internet Banking.
c) Payment and Terms:
i) Payment shall be made in NZ Dollars to ASPect-is into the account designated by ASPect-is, or as may otherwise by agreed in writing by parties.
ii) Any deposit due (non-refundable) will be indicated to the Client and is payable with order. Remaining payments are due upon final approval (prior to publication), by the Client, of any design or programming work undertaken by ASPect-is, or as otherwise scheduled in the order.
iii) If due to bank charges, transfer fees, or the like, ASPect-is should receive less than its invoice amount, ASPect-is will re-invoice the Client for the shortfall.
iv) In the event that any amount remains unpaid thirty (30) days after date or renewal or new order invoice, ASPect-is may discontinue, withhold, or suspend the provision of Products to the Client and/or its Client(s) to whom unpaid amounts relate.
v) Additionally, ASPect-is reserves the right to charge interest on all outstanding amounts owed to ASPect-is and not paid in accordance with this Agreement (calculated daily and compounded monthly) at a rate equal to 4% (four per cent) above the Base Rate both before and after any judgement.
vi) If the Client disputes the amount of any charge made it must inform ASPect-is in writing within 7 days (seven days) of receipt of the relevant invoice. Interest shall accrue notwithstanding termination of this Agreement for whatever reason.
vii) The Client shall also pay all legal fees and other costs incurred by ASPect-is in connection with collecting or recovering amounts owed by the Client under this Agreement.
viii) Until payment in full is received by ASPect-is of any amounts owed under this Agreement, (save for amounts which are disputed by the Client, and in respect of which the Client has given written notice to ASPect-is) ASPect-is shall be entitled (and reserves the right) to withhold any or all parts of any Products provided to the Client under this Agreement until such time as payment in full is received and charges for Products shall continue to accrue.
ix) Data transfer overage invoices are due on presentation. ASPect-is reserve the right to withhold or suspend the provision of Products to any Client and/or its Client(s) to which unpaid data transfer overage amounts relate.
3) DELAYS
a) If the Client significantly delays the completion of a project, for whatever reason, ASPect-is reserves the right to invoice and expect payment in full of any outstanding work to date. Furthermore ASPect-is reserves the right to re-quote the remainder of the work, when it recommences, to account for time in re-establishing the project, changes in hourly rates and other costs and anything that may require re-development to bring the project up to date.
4) TITLE
a) ASPect-is and the Client agree that ownership of the Products shall not pass until:
i) the Client has paid ASPect-is all amounts owing to ASPect-is; and
ii) the Client has met all of its other obligations to ASPect-is.
b) Receipt by ASPect-is of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
c) It is further agreed that:
i) until ownership of the Products passes to the Client, that the Client is only a bailee of the Products and must return them to ASPect-is on request.
ii) the Client holds the benefit of the Client’s insurance of the Products on trust for ASPect-is and must pay to ASPect-is the proceeds of any insurance in the event of the Products being lost, damaged or destroyed.
ASPect-is Ltd
Standard Terms and Conditions
iii) the Client must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Products then the Client must hold the proceeds of any such act on trust for ASPect-is and must pay or deliver the proceeds to ASPect-is on demand.
iv) the Client should not convert or process the Products, or intermix them, with other goods, but if the Client does so then the Client holds the resulting product on trust for the benefit of ASPect-is and must sell, dispose of or return the resulting product to ASPect-is as it so directs.
v) the Client irrevocably authorises ASPect-is to enter any premises where ASPect-is believes the Products are kept and recover possession of them.
vi) ASPect-is may recover possession of any Products in transit, whether or not delivery has occurred.
vii) the Client shall not charge or grant an encumbrance over the Products nor grant, nor otherwise give away any interest in them while they remain the property of ASPect-is.
viii) ASPect-is may commence proceedings to recover the purchase price of the Products sold, notwithstanding that ownership of the Products has not passed to the Client.
5) PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
a) Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
i) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
ii) a security interest is taken in all Products previously supplied by ASPect-is to the Client (if any) and all Products that will be supplied in the future by ASPect-is to the Client.
b) The Client undertakes to:
i) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ASPect-is may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
ii) indemnify, and upon demand reimburse, ASPect-is for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Products charged thereby;
iii) not register a financing change statement or a change demand without the prior written consent of ASPect-is; and
iv) immediately advise ASPect-is of any material change in its business practices of selling the Products which would result in a change in the nature of proceeds derived from such sales.
c) ASPect-is and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
d) The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
e) Unless otherwise agreed to in writing by ASPect-is, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
f) The Client shall unconditionally ratify any actions taken by ASPect-is under clauses a) to e).
6) SECURITY AND CHARGE
a) In consideration of ASPect-is agreeing to provide the Products, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
b) The Client indemnifies ASPect-is from and against all ASPect-is’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ASPect-is’s rights under this clause.
c) The Client irrevocably appoints ASPect-is and each director of ASPect-is as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 6) including, but not limited to, signing any document on the Client’s behalf.
7) CANCELLATION
a) If the Client wishes to cancel this Agreement prior to the date of delivery in whole or in part ASPect-is may, without prejudice to its right to treat cancellation as a breach or repudiation of this Agreement, agree to accept such cancellation upon the basis that the Client shall reimburse to ASPect-is all reasonable costs including:
i) all costs incurred of work done;
ii) all costs incurred by removing Products provided, if required.
8) IPR AND COPYRIGHT
a) ASPect-is owns all right, title and interest in ASPect-is’s trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, programming, function or operation of services and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist.
b) This Agreement does not constitute a license to the Client to use ASPect-is’s trade names or service marks. All license and copyright deriving from the Products shall stay with ASPect-is.
c) ASPect-is reserve the right to display or exhibit any Products to other potential customers, except where doing so may violate any confidentiality agreements which may be in force.
d) ASPect-is reserve the right to reuse, for other customers, any suitable portions of code or design which may be taken from code or designs prepared for the Client.
ASPect-is Ltd
Standard Terms and Conditions
9) CONFIDENTIALITY
a) The Client acknowledges that by reason of its relationship with ASPect-is hereunder, it may have access to certain information and materials relating to ASPect-is’s business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to ASPect-is, which value would be impaired if such information were disclosed to third parties. The Client agrees that it will not use in any way for its own account, nor for the account of any third party, nor disclose to any third party, any such information revealed to it by ASPect-is.
10) PRIVACY ACT 1993
a) The Client authorises ASPect-is, or ASPect-is’s agent, to:
i) access, collect, retain and use any information about the Client;
 (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
 for the purpose of marketing Products to the Client.
ii) disclose information about the Client, whether collected by ASPect-is from the Client directly or obtained by ASPect-is from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
b) Where the Client is an individual the authorities under clause a) are authorities or consents for the purposes of the Privacy Act 1993.
c) The Client shall have the right to request ASPect-is for a copy of the information about the Client retained by ASPect-is and the right to request ASPect-is to correct any incorrect information about the Client held by ASPect-is.
11) RELATIONSHIP OF THE PARTIES
a) The relationship between ASPect-is and the Client is that of vendor and vendee. They shall not be construed as being joint ventures, franchiser/franchisee, or employer/employee.
b) This Agreement is a commercial agreement between businesses, and not a consumer agreement.
c) The Client has no authority, apparent or otherwise, to contract for or on behalf of ASPect-is, or in any other way legally bind ASPect-is in any fashion, nor shall the Client be authorised to make any representations about ASPect-is