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Terms and Conditions

The following Terms and Conditions have been prepared to help you understand how this agreement is structured. It contains important information about your obligations under this agreement and how Belton IT Nexus will deliver services to you.

  1.            PARTIES TO THE AGREEMENT

This Agreement (hereinafter referred to as “Agreement”) is made between Belton IT Nexus Limited (hereinafter referred to as “Provider”) and the company listed in the “Client Name” section on Page 11 (hereinafter referred to as “Client”).

2.            PURPOSE

This Agreement outlines the terms and conditions under which the Provider will provide its Services to the Client.

3.           DEFINITION

(a)           “Emergency Support” means a Priority one (1) Support Service requested by the Client outside Normal Business Hours.

(b)           “Normal Business Hours” means the time-period from 8:30AM to 5:30PM Monday through Friday.

(c)           “Server” means a server hardware running Microsoft Operating System.

(d)           “Workstation” means a Desktop PC, Notebook, or Laptop hardware running Microsoft Operating System.

4.            TERM

This Agreement shall commence on the Commencement Date for an Initial Term of three (3) months (hereinafter referred to as “Initial Term”), unless this agreement is replacing a current support agreement in which case the Initial Term shall be twelve (12) months.  Thereafter, the Agreement will be automatically renewed for successive one-year terms beginning on the day immediately following the end of the Initial Term and after applying any revisions approved by both parties, unless either party gave the other party a written notice of cancellation thirty (30) calendar days prior to the expiration of the term.

5.           TERMINATION

5.1           Client may terminate this agreement at the end of the current term with thirty (30) calendar days written notice to the Provider prior to the expiry of the Initial Term or any successive terms.

5.2           Provider may immediately terminate this agreement in the event Client fails to perform its obligation for payments pursuant to this Agreement. In such event, Provider shall have the right to recover for all Services performed prior to the date of termination.

5.3           This Agreement may be terminated by either party upon five (5) calendar days written notice if the other party terminates or suspends its business operations unless it is succeeded by a permitted assignee under this Agreement.

5.4           Upon termination of this Agreement each party shall return or destroy, at the option and direction of the other party, all other party’s Confidential Information in its possession.

6.           SERVICES

The Services available to the Client under the terms of this Agreement are as listed and specified on pages 3, 4 and 5 of this Agreement.

7.           SUITABILITY OF CLIENT’S EXISTING ENVIRONMENT

In order for Client’s existing environment to qualify for Provider’s Services, the following minimum requirements must be met:

           (a)           All hardware is under valid warranty or replaceable parts are readily available and all software is Genuine, Currently Licensed and Vendor-Supported. Should any hardware, software, or system fail to meet these provisions, they will be excluded from this Agreement.

           (b)           All Servers must be running a currently supported operating system at all times.  At time of writing this is Windows Server 2012 or later.

           (c)           All Workstations must be running a currently supported operating system at all times.  At time of writing this is Windows 8.1 or later.

           (d)           The environment must have a Currently Licensed, up-to-date and Vendor-Supported Antivirus Solution protecting all Servers, Workstations, and Email.

           (e)           The environment must have a Currently Licensed, Vendor-Supported Backup Solution.

8.            CLIENT DUTY AND RESPONSIBILITY

8.1.           Designate one of its employees as the main contact for all IT issues.

8.2.           Allow the installation of Provider’s hardware and software on Client’s network as necessary to allow for the performance of the Services contemplated in this Agreement.

8.3.           Provide configuration and proper ownership documentation as necessary for hardware and software.

8.4.           Immediately alert Provider concerning any Client or third-party activity on Client’s network, software, or hardware.8.5.          

8.5.           The Client is to ensure that the Provider’s employees and sub-contractors are given necessary access to Client’s systems in order that the Services may be delivered and maintained in accordance with the terms of this Agreement.

8.6.           The Client will respond promptly, and in any case, within five (5) business days to any Provider requests to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for the Provider to perform the Services.

8.7.            The Client must notify the Provider at least ten (10) business days before the date set by the Client to commence with any of the Project Services listed in Appendix A of this Agreement.

8.8            Perform backup duties as specified by the Provider.

9.            Security

9.1.           The Client is to ensure that Provider’s employees and sub-contractors are given reasonable authorised access to premises and equipment in order that the Services may be delivered and maintained in accordance with the terms of this Agreement.

9.2.           In the event that the Client operates formal security policies, the Provider will ensure that its employees are made aware of such policies and will also ensure ongoing compliance with these policy statements. The Client will provide the Provider with up to date information on its security policies and will keep the Provider informed about any changes to these policies.

9.3.           The Provider will manage information and data security with reasonable efforts to restrict unauthorized access. The Provider will make best endeavours to ensure that its employees and representatives are fully aware of the risks associated with information and data security issues.

10.            INTELLECTUAL PROPERTY RIGHTS

Both parties acknowledge the Intellectual Property Rights of the other party whether registered or not.

11.            CONFIDENTIAL INFORMATION

11.1           Confidential Information will remain the property of the disclosing party and the receiving party will not acquire any rights to that Confidential Information.

11.2           The parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other party’s Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information.

11.3           Confidential Information shall not include any information that:

           (a)           is already known to the receiving party or its affiliates, to be free of any obligation to keep it confidential;

           (b)           is or becomes publicly known through no wrongful act of the receiving party or its affiliates;

           (c)           is independently developed by the receiving party or its affiliates;

           (d)           is disclosed to third parties by the disclosing party without any obligation of confidentiality;

           (e)           is approved for release by prior written authorization of the disclosing party.

11.4           If the receiving party receives a court order to divulge any Confidential Information belonging to the disclosing party, then the receiving party is permitted to release such information to the court in accordance with any court order so served.

11.5           The terms and provisions of clause 11 shall survive any expiration or termination of this Agreement.

12.           LIABILITY

12.1         Provider does not accept liability beyond the remedies set forth herein, including any liability for services not being available for use or for lost or corrupted data or software, or the provision of services and support.

12.2           Provider will not be liable for lost profits, loss of business or other consequential, special, indirect, or punitive damages, even if advised of the possibility of such damages, or for any claim by any third party except as expressly provided herein. Client agrees that for any liability related to the purchase of products or services, Provider is not liable or responsible for any amount of damages above the aggregate dollar amount paid by Client for the purchase of services under this Agreement.

12.3           Should the Client become entitled to claim damages from the Provider, the Provider will be liable only for the amount of the Client’s actual direct damage up to the amount that the Provider has actually received from the Client as payment for the specific services or items that are the subject of the claim. The Provider is not responsible for any damages caused by the failure of the Client or its affiliates or other providers to perform their responsibilities.

12.4           Except in respect of payment liabilities, neither party will be liable for any failure or delay in its performance under this Agreement due to reasons beyond its reasonable control, including acts of God, acts of war, earthquake, flood, explosion, fire, strike, insurrection, riot, labour trouble, work interruption, embargo, sabotage, governmental act, loss of IP address or failure of the Internet, provided the delayed party gives the other party prompt notice of the reasons for such cause.

12.5           Client acknowledges that Provider would not enter into this agreement without these limitations on liability.

12.6           The limitation of liability included in clause 12 will survive any expiration or termination of this Agreement.

13.            LEGAL COMPLIANCE & RESOLUTION OF DISPUTES

13.1.         The laws pertaining in the jurisdiction of New Zealand will govern this Agreement.

13.2.         Both parties agree not to commence any court or arbitration proceedings relating to any dispute arising out of this Agreement, until both parties have complied with this clause 13, unless proceedings are necessary for preserving the rights of either party.

13.3.         Resolution By Agreement

If a dispute arises under this Agreement:

           (a)           The party claiming that a dispute exists must give written notice to the other party specifying the nature of the dispute; and

           (b)           Both parties will act in good faith and use their best endeavours to resolve the dispute by agreement.

13.4.         Mediation and Arbitration

(a)        if the dispute is not settled by agreement within twenty (20) business days of receipt of the notice of dispute, then unless both parties agree otherwise in writing, both parties agree to participate in mediation with a mutually acceptable mediator appointed if necessary by the Chairperson of the New Zealand Chapter of LEADR.

(b)           If the dispute or difference is not settled by mediation within thirty (30) business days of the commencement of that mediation process, then unless both parties agree otherwise in writing, the matter will be referred to arbitration in accordance with the Arbitration Act 1996.

13.5           Obligations Continue

13.5.1           Both parties will continue to comply with all their obligations in this Agreement until the dispute is resolved, except that both parties will meet to agree upon whether:

           (a)           Payments may be withheld by Client to the extent that they are disputed, in which case Provider is not obliged to provide any Services for which the Client has withheld payment pending resolution of the dispute; or

           (b)           The Client may continue to pay the Provider for the Services, in which case the Provider is obliged to continue to provide the Services.

13.5.2.           Such agreement to be reached based on what is reasonable in the circumstances having regard to the nature of the Services and the dispute in question.

14.            GENERAL

14.1.         Standard of Care

Each party will act in good faith in the performance of its respective duties and responsibilities and will not unreasonably delay or withhold the giving of consent or approval required for the other party under this Agreement. Each party will provide an acceptable standard of care in its dealings with the other party and its employees.

14.2.          Independent Contractor

Provider is an independent contractor. Neither Provider nor Client are, or shall be deemed for any purpose to be, employees or agents of the other and neither party shall have the power or authority to bind the other party to any contract or obligation.

14.3.         Assignment

Neither party shall assign its rights or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement to an entity who acquires substantially all of the stock or assets of such party; provided that consent will be required in the event that the non-assigning party reasonably determines that the assignee will not have sufficient capital or assets to perform its obligations hereunder. All terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.

14.4.           Service of Notice

Service of all notices under this Agreement shall be sufficient if made by registered mail to the specific party involved herein at its respective address noted in the preamble to this Agreement.

14.5           Non-Solicitation

During the term of this Agreement and for two years after its expiration or termination, neither party will solicit any employee of the other party for the purposes of offering employment or contract

14.6           Severability

The provisions of this Agreement shall be deemed severable, and the unenforceability of any one of the provisions shall not affect the enforceability of other provisions. In the event that a provision is found to be unenforceable, the parties shall substitute that provision with an enforceable provision that preserves the original intent and position of the parties.

14.7.         Entire Agreement and Modifications

Each party acknowledges that it has read this Agreement and further agrees that the Agreement is the complete and exclusive statement of the parties and supersedes and merges all prior proposals, understandings, and agreements, oral or written, between the parties relating to the subject matter hereof, including without limitation, the terms of any Client request for proposal.

No modification, amendment, supplement to or waiver of this Agreement shall be binding upon the parties hereto unless made in writing and duly signed by both parties.

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