Our Terms & Conditions
Website and/or Applicaiton Hosting
- The following words and expressions shall have meanings are assigned except where the context otherwise requires:
- "Additional Service Agreement" means the terms and conditions specific to a Service, which will become a part of this Agreement when you order that Service.
- "Client" and "You" means the party or parties who enter into this Agreement with cdmdotnet.
- "Content" means text, graphical, audio or like materials, together with any software, which can be uploaded or downloaded to or from the web.
- "Intellectual property rights" means patents, Trade Marks, registered designs, applications of any of the above, copyright and other similar protected rights in any country.
- "Managed Services" means any procedures carried out by cdmdotnet at the Client’s request which is outside the scope of standard support and for which a charge will apply.
- "Our web site" means www.cdmdotnet.com, www.chinchillasoftware.co.nz, or any sub-domains such as secure.cdmdotnet.com, secure.chinchillasoftware.co.nz or any other domains which resolve to the same IP address as the afore stated addresses.
- "Service" means any Service provided to you by cdmdotnet.
- "Service Agreement" means a written service agreement of any service, in a form prescribed by cdmdotnet.
- "Third-Party Service Provider" means any third party service provider or contractor on whom cdmdotnet depends in the provision of any Service or any part thereof or whose service, license, approval or fulfilment or certain obligations to cdmdotnet will affect cdmdotnet provision of a service or any part of a service.
- "cdmdotnet", "us", "we" and "our" means cdmdotnet Limited and includes our successors in title and/or assigns;
- 2.A | cdmdotnet agrees to provide you with Services, and you agree to accept the Services subject to the terms herein.
- 2.B | Our Agreement with you also includes:
- 2.B.A | Additional Service Agreement(s) specific to any Service or Services, which you will agree to when purchasing or applying for that Service or Services.
- 2.B.B | Your application forms for the initial account and for any Services ordered subsequently or in the future, including any information supplied by you on such forms.
- 2.B.C | Our Acceptable Use policy.
- 2.B.E | Any other policies which cdmdotnet formally adopts from time to time.
- 2.C | If, in our opinion, there has been a breach of the acceptable use policy by a person or entity associated to your account, you agree we are entitled to suspend the service concerned without notice.
- 2.D | Unless otherwise specified in an additional service agreement, the service provided by cdmdotnet will not include:
- 2.D.A | The development or uploading of your website
- 2.D.B | Any service to reconfigure your computer system, hardware or software
3. Providing Information
- 3.A | You agree to provide us with accurate information about yourself and/or your organisation. In particular, you agree to ensure the customer name field of the account application form bears your full legal name.
- 3.B | Applicant type:
- 3.C.A | If the applicant is a corporate body, you warrant that you are duly authorised to enter Agreements on behalf of the applicant.
- 3.D.B | If you are an individual, you warrant that you are over 18 years of age.
- 3.E | You also agree to provide us with any information we reasonably ask for to help us provide Services to you, or to comply with any legal requirement we may have in providing the Services.
- 3.F | You agree to notify us when any of your contact details change. cdmdotnet will not be responsible in any way for any losses, damages, costs or expenses as a result of your failure to comply with this clause.
- 3.G | cdmdotnet may publicly refer to you orally and in writing as a customer of cdmdotnet.
4. Your responsibilities
- 4.A | You agree to ensure your service is not used for any activity that breaches the law or infringes another person’s rights.
- 4.B | You agree to ensure our service is not used in any way that interferes with other customers, defames, harasses or menaces anyone.
- 4.C | You must not reproduce, distribute, copy, download, transmit or otherwise exploit any content which infringes any third party intellectual property rights or similar right unless you own or control the relevant rights or have obtained all the requisite licenses and approvals.
- 4.D | You must not interfere with, disrupt, hack, break into or access any part of the service, our content or any data areas on ours or our Third-Party provider’s servers for which you have not been authorised by us in writing.
- 4.E | cdmdotnet may monitor your use of the Services and any material posted, downloaded, transmitted or communicated using the Services for compliance with cdmdotnet's Terms. cdmdotnet may pass any material or information it suspects to be illegal or offensive, to the relevant authority and you will have no claim against cdmdotnet for this.
- 4.F | cdmdotnet may monitor your use of the Services at any time with regard to reasonable usage and if it deems your usage is in excess of the agreed service plan(s), and, or it places an unreasonable strain on cdmdotnet resources or services to its existing or prospective clients, cdmdotnet reserves the right to request you to upgrade your service plan within 48 hours of email notification from cdmdotnet to your last known contact address. Failure to authorise, or provide suitable remedies in the above event may result in the suspension of your services.
- 4.G | For ‘Unlimited’ shared Hosting services, there is no bandwidth or storage space limit. However, ‘Unlimited’ shared hosting services are not intended to support the needs of large enterprises that require substantial bandwidth and storage. To ensure that our shared hosting is reliable and available for all of our small business users, your usage cannot adversely affect the performance of other customers' sites. Using our ‘Unlimited’ shared hosting services as online storage space for archived electronic files is prohibited. You agree that if your bandwidth and storage space usage adversely affects other customers on our shared hosting platform, cdmdotnet may suspend or terminate your Hosting Services without liability.
- 4.H | You agree to ensure that no minor will use our service with an account id allocated to your customer account unless they have your express permission and are under your personal supervision.
5. Payment of Fees
In consideration of cdmdotnet providing you with the Service, you agree to make payment as follows:
- 5.A | Our fees for each Service are displayed on the order form for the service displayed on our web site. All our prices are stated in New Zealand Dollars and unless explicitly stated otherwise are exclusive of Goods and Services Tax.
- 5.B | The preferred method of payment for cdmdotnet services is direct credit. Other methods accepted are credit card, cheque or cash by prior arrangement only - surcharges may apply.
- 5.C | The minimum term of this agreement for provision of Web Hosting/Email services is 12 months, renewable annually for further periods of 12 months.
- 5.D | Renewal notices will be issued by email around 45 days prior to expiration of 12 month agreement. Reminder emails will also be sent at around 10 days and 5 days prior to expiration.
- 5.E | Provided payment of the renewal fee is made prior to the expiration of the existing agreement, supply of your Web Hosting/Email services will roll over without disturbance.
- 5.F | Payment of renewal can be made at any time in or prior to the 45-day period. Note that payment received in the 45-day period does not change the expiration/anniversary date, which remains 12 months from the date of initial commencement of services.
- 5.G | This agreement is for a minimum term of 12 months. No refunds for early cancellation will be made.
- 5.H | If payment of renewal fee is not received by 5 days after expiration date, your Web Hosting/Email services will be automatically terminated.
- 5.I | Dispute
- 5.J.A | If you maintain that you have a valid claim against cdmdotnet arising out of the service agreement, it must be notified in writing to cdmdotnet within 12 months of the incident giving rise to such claim or you will be deemed to have waived your rights under the respect of such claim.
- 5.K.B | You will not withhold any payment for any fees which are not in dispute.
- 5.L | We may alter our fees from time to time. When we alter them we will post notice on our website of the alteration 30 days before the new fee takes effect. If the change of fees is not acceptable to you, you may cancel the service. We will interpret your ongoing use of our Services after that date as constituting your acceptance of the amendments. If you do not agree to the amendments, you may notify us by email requesting termination of the Agreement, and any applicable minimum terms will be waived in these circumstances.
- 5.M | In the event of a charge back by a credit card company (or similar action by another payment provider allowed by us) or other reversal of payment by you in connection with the Service, your Service may be suspended without notice.
6. Termination of Agreement and Cancellation of Services
- 6.A | Subject to any fixed or minimum term set out in this or any Additional Service Agreement, either party may cancel this Agreement either in total or for any specific Service. If there are Services for which a minimum term applies, no refunds for early cancellation will be made.
- 6.B | Services can either be cancelled by non-payment on the renewal notice, or by sending an email to firstname.lastname@example.org, including the password of the account.
- 6.C | cdmdotnet reserves the right to cease immediately without liability (other than for the refund of unearned prepaid Service fees) to provide the Service and to terminate the Agreement if you should go into liquidation or bankruptcy or if you fail to comply with any obligation in accordance with this Agreement.
- 6.D | Promotions: At the end of a promotional campaign, current products and services fees will be charged at the normal billing cycle unless otherwise stated or product(s) duly cancelled by you.
7. Disclaimer of Liability
- 7.A | cdmdotnet shall not be liable under any circumstances and whether in contract, tort or otherwise, for:
- 7.A.A | Any costs, losses, expenses and/or damages whether direct or indirect which are incurred by you as a result of your failure in whole or in part to comply with any of these terms and conditions.
- 7.A.B | Any costs, losses, expenses and/or damages whether direct or indirect which are incurred by you for any reason as a result of our failure to fulfill our commitments under this Agreement in circumstances where the failure is due in whole or in part to any cause or event outside the reasonable control of cdmdotnet.
- 7.A.D | Any third party claims and/or third party costs, losses, expenses and/or damages whether brought against cdmdotnet or you and which relate to your site. Further you agree to fully indemnify cdmdotnet, it's employees, owners and directors against all such third party claims, costs, losses, expenses and/or damages, including any reasonable legal costs of and incidental to cdmdotnet (and/or it's employees, owners and directors) defending themselves.
- 7.A.E | Any amount by way of claim not otherwise excluded above, which exceeds in total an amount equal to 12 months fees paid by you for the Services.
- 7.A.F | cdmdotnet is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider or its customers may utilise.
- 7.A.G | cdmdotnet does not represent or warrant to the Client that the Client will receive continual and uninterrupted, error free and virus free Service during the term of this Agreement.
8. Force Majeure
- 8.A | Neither party to this Agreement shall be responsible for failure to fulfil its commitments in this Agreement if such failure is due to any circumstances outside its reasonable control. Such circumstances comprise, but are not confined to, acts of God, war, riots and sabotage, technological deficiency in the Internet or telecommunications systems or similar.
9. Governing law
- 9.A | This Agreement shall be deemed to be an Agreement made in New Zealand and shall be subject to, governed by and interpreted in accordance with the laws of New Zealand.
- 10.A | We may assign or transfer our rights and responsibilities under this Agreement to someone else. We will give you notice by email in advance if we intend to do this.
- 10.B | We may also subcontract the performance of any of our responsibilities under this Agreement to anyone else.
- 10.C | You may not assign or transfer any of your rights or responsibilities under this Agreement to anyone else without our prior written consent.
- 10.D | Each Clause Separately Binding Each clause of the Agreement you have with us is separately binding. If for any reason we, you, or any of the persons specified in clause 9 cannot rely on any clause, all other clauses of it are binding.
- 11.A | Notices to us which are required to be by email must be to one of the following addresses: email@example.com, firstname.lastname@example.org or email@example.com
- 11.B | Any notice which is required to be by email may also be sent in writing on company letterhead.
- 11.C | Notices by email from us to you will be sent to the email address currently listed in our records.
- 11.D | Either party may deem the other party to have received any notice sent under this Agreement within the following time of its being sent to the relevant address:
- 11.A.A | For notices transmitted electronically, within 24 hours of its sending by email, facsimile or SMS Service, provided that no bounce or failure response has been received in that time.
- 11.A.B | Within four days of its being lodged with the postal or courier service in the case of notices that are sent by writing.
12. Intellectual Property and Copyright
- 12.A | You agree and acknowledge that all Intellectual Property Rights and other rights in any Service, (whether developed individually, collectively or jointly with you) including but not limited to the Equipment and the Software are either owned by or licensed to cdmdotnet.
- 12.B | You agree to not use the name, brand, logo or Trade Marks of cdmdotnet or its affiliated or related companies without prior written consent of cdmdotnet and not to take action or be associated with any activity that may interfere with or diminish cdmdotnet or its affiliated companies rights, titles and or interest in any of the Trade Marks.
13. Agreement and Variation of Agreement
- 13.A | You shall be deemed to have read this Agreement and agree to be bound by this Agreement. This Agreement shall supersede all proposals or prior Agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
- 13.B | We may amend these General Terms or any "Additional Service Agreement" or any other Policy at any time. This will vary our Agreement with you. When we do this we will notify you via the primary email address you have provided to us and associated to your account with us. The amendments we make will apply on the date specified on the updated Policy and we will give 28 days’ notice where possible. We will interpret your ongoing use of our Services after that date as constituting your acceptance of the amendments. If you do not agree to the amendments, you may notify us by email requesting termination of the Agreement, and any applicable minimum terms will be waived in these circumstances.
- 13.C | We reserve the right to modify, enhance and withdraw the service at any time. In the event of any change, we will notify you by email giving reasonable notice of the change(s).
- 13.D | You may have multiple Services or Services with us. Any variation in your Agreement as it affects one Service or cancellation of one Service shall not affect any other Service you have with us, nor give rise to a right to cancel such other Service(s).
Standard Website or Applicaiton Development and/or Consulting Services
Unless the context otherwise requires, the following expressions shall have the following meanings:
- Unless otherwise expressly agreed between cdmdotnet Limited ("cdmdotnet"), its subsidiaries and otherwise branded divisions of cdmdotnet and a client ("Customer") these terms will apply to the provision of all Software development Services by cdmdotnet to the Customer, and are to be read in conjunction with any Project Scope entered into with the Customer ("Scope").
- Each Scope together with these terms forms a separate agreement ("Agreement"). These terms do not apply to other IT and/or support Services where cdmdotnet and the Customer may have entered into separate written agreements dealing with those subject matters.
- cdmdotnet may modify or amend these terms at any time with, 30 days’ prior written notice or by way of update to the terms and conditions displayed at http://www.cdmdotnet.com/terms
- "Confidential Information" means information which is or has been disclosed by one party to the other, but does not include any information that is:
- a) on receipt, in the public domain, or which subsequently enters the public domain without any breach of this Agreement;
- b) on receipt, already known by the party receiving it;
- c) at any time after the date of receipt, received in good faith from a third party; or
- d) required by law to be disclosed;
- "Documentation" means the Documentation described in the Specifications;
- "Force Majeure Event" means (without limitation) fire, explosion, earthquake, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, blockade, embargo, sanctions, epidemics, act of any government or other authority, compliance with government orders, demands or regulations, telecommunication outages or any act or omission on the part of a third party;
- "GST" means goods and Services tax imposed under Goods and Services Tax Act 1985;
- "Intellectual Property" means copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, Confidential Information and any other intellectual proprietary right or form of Intellectual Property;
- "Services" means the Services supplied by the cdmdotnet in order to create and develop the Software;
- "Software" means the Software described in the Scope, but excludes the source code;
- "Specifications" means the Specifications referred to in the Scope;
- "System" means the equipment and Software that form the System on which the Software is to be installed, as specified in the Specifications;
- "Warranty Period" means the period specified in the Scope.
- 2.A | cdmdotnet shall develop, supply and, if applicable, install the Software for the Customer and shall licence the Software to the Customer. The Customer shall pay cdmdotnet in accordance with the terms and conditions outlined in any corresponding Scope.
- 2.B | cdmdotnet shall supply the third party or proprietary Software (if any) set out in the Scope on the terms of the relevant licence agreement and the Customer shall pay cdmdotnet the licence fees in accordance with the terms and conditions outlined in any corresponding Scope.
3. Development of Software
- 3.A | cdmdotnet shall develop the Software substantially in accordance with the Specifications.
- 3.B | Either party may suggest changes to the Specifications in accordance with clause 8.
4. Delivery and Installation
- 4.A | cdmdotnet shall use reasonable endeavours to deliver the Software and the Documentation, if any, to the Customer on the delivery date specified in the Scope or as soon as reasonably practical.
- 4.B | If applicable, cdmdotnet shall use reasonable endeavours, on or before the installation date specified in the Scope, if any, to install the Software on the System.
- 4.C | cdmdotnet will have no liability for any delays or failure in delivery where such delays or failure are the direct or indirect result of any act or omission of the Customer or a breach by the Customer of this Agreement.
- 5.A | The Customer must, within 7 days of delivery date and, if applicable, installation of the Software, test the Software in accordance with the acceptance criteria set out in the Scope and/or relevant Specifications. cdmdotnet will be entitled to observe and, at its option, participate in the acceptance tests.
- 5.B | The Customer is deemed to have accepted the Software when either:
- 5.B.A | the Customer has completed those acceptance tests to its reasonable satisfaction; or
- 5.B.B | 14 days have elapsed since the Software has been made available to the Customer for testing and the Customer has failed either to complete the acceptance tests or to notify cdmdotnet in writing of any defects.
- 6.A | During the Warranty Period stated in any corresponding Scope, cdmdotnet warrants that the Software will operate in conformity with the Specifications in all material respects.
- 6.B | The Customer must notify cdmdotnet in writing during the Warranty Period if the Customer identifies a defect in the Software.
- 6.C | The Customer’s sole remedy for a breach of the warranty is limited, at cdmdotnet’s option, to one of the following:
- 6.C.A | The supplying of the Services again at no additional charge; or
- 6.C.B | The refund a prorated amount of any charges paid to cdmdotnet for the defective Services.
- 6.D | If cdmdotnet finds that the alleged defect does not exist, cdmdotnet may make an additional charge for investigating the alleged defect.
- 6.E | cdmdotnet will not be liable under this clause:
- 6.E.A | If the defect is not notified to the cdmdotnet in writing during the Warranty Period;
- 6.E.B | If the defect cannot be verified or reproduced by cdmdotnet; or
- 6.E.C | If and to the extent that the defect is caused by the Customer or a third party.
- 7.A | cdmdotnet grants the Customer a non-exclusive, non- transferable licence to use:
- 7.A.A | the Software and to make a copy of the Software for the Customer’s security, backup and archival purposes; and
- 7.A.B | the Documentation.
- 7.B | The Customer must use the Software and Documentation for its own internal business purposes only.
8. Change Request Procedure
- 8.A | The Customer may request or cdmdotnet may suggest a change to the Specifications and/or functionality of the Software ("Improvement Request").
- 8.B | The Customer will approve an agreed amount of time (up to eight hours) for the initial analysis of the proposed change and accepts that such time is chargeable, regardless of whether the Customer subsequently decides to proceed with the change or not.
- 8.C | Should an Improvement Request be made, cdmdotnet shall give an estimate to the Customer of the cost of implementing that Improvement Request, and indicate the impact of the proposed change on the budget and/or schedule of the project.
- 8.D | If the Customer accepts the estimate and the impact on timing provided under clause 8.3 and instructs cdmdotnet to proceed with the proposed Improvement, then cdmdotnet shall provide to the Customer the following:
- 8.D.A | revised Specifications (if applicable); and
- 8.D.B | the revised charges and fees (if applicable),
- 8.D.C | and this Agreement shall then be deemed to incorporate the revised components specified in this clause.
- 8.E | cdmdotnet may charge the Customer for any work undertaken in providing estimates under this clause at its then current rates.
9. Client Obligations
- 9.A | The Customer must, at its own expense, prepare its IT System(s) and access to such Systems for the installation of the Software. In doing so, the Customer must comply with any reasonable directions or Specifications issued by cdmdotnet.
- 9.B | The Customer must provide cdmdotnet with full and safe access to its IT Systems as is reasonably required by cdmdotnet.
- 9.C | The Customer shall make available to cdmdotnet in a timely manner all assistance, including personnel, information, facilities, Services and equipment, reasonably required by cdmdotnet for the performance of its obligations under this Agreement.
- 10.A | Following expiry of the Warranty Period, cdmdotnet shall not be required to correct errors or defects in the Software or in any other respect support the Software pursuant to this Agreement.
- 10.B | cdmdotnet may, at its option, provide support Services to the Customer pursuant to a separate agreement.
11. Charges and Payment
- 11.A | The Customer must pay cdmdotnet the amounts specified in any corresponding Scope in accordance with the timing specified in such Scopes.
- 11.B | All sums payable by the Customer under this Agreement shall be made in full, without set-off or counter-claim and, except to the extent required by law, free and clear of any deduction on account of tax or otherwise.
- 11.C | If the Customer fails to make payment of any amount due under this Agreement on the due date, cdmdotnet may without prejudice to its other rights require the Customer to pay interest on the amount due from the due date until the date of payment (such interest will be charged at the published commercial overdraft rate of cdmdotnet’s principle bank plus 5%). In addition to the Customer remaining liable for the full amount outstanding.
- 11.D | If a Customer account is overdue, we may refer the balance to a debt collection agency.
- 11.D.A | The Customer is liable for any costs associated with collection of an overdue debt.
- 11.D.B | The Customer accepts any costs assocaited with the collection of an overdue account will be added to the balance due.
- 11.E | The preferred method of payment for cdmdotnet services is direct credit. Other methods accepted are credit card, cheque or cash by prior arrangement only - surcharges may apply.
12. Protection of Intellectual Property
- 12.A | The Customer acknowledges that cdmdotnet (or its suppliers and licensors) is or shall be the sole owner of all rights (including Intellectual Property rights) in the Software and the Documentation supplied under this Agreement.
- 12.B | The Customer must not, nor may it permit any other person to:
- 12.B.A | copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance the Software or the Documentation;
- 12.B.B | alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality, proprietary or trade secret, legend or notice, or any numbers, or other means of identification used on or in relation to the Software and/or the Documentation;
- 12.B.C | make any of the Software and/or the Documentation available to any person other than its employees without the prior written consent of cdmdotnet; or
- 12.B.D | do any act that would or might invalidate or be inconsistent with cdmdotnet’s Intellectual Property rights.
- 12.C | The Customer must, take all such steps as cdmdotnet may reasonably require to assist cdmdotnet to maintain the validity and enforceability of cdmdotnet’s Intellectual Property rights.
- 12.D | The Customer must notify cdmdotnet of any actual, threatened or suspected infringement of any Intellectual Property right and of any claim by any third party that any use of the Software and/or the Documentation infringes any rights of any other person, as soon as that infringement or claim comes to the Customer’s notice. The Customer shall do all such things as may reasonably be required by cdmdotnet to assist cdmdotnet in pursuing or defending any proceedings in relation to any such infringement or claim.
- 12.E | The Customer indemnifies cdmdotnet against any loss, costs, expenses, demands or liability, whether direct, indirect or consequential or otherwise, and whether arising in contract, tort (including in each case negligence), or equity or otherwise, arising out of a claim by a third party alleging infringement of that third party’s Intellectual Property rights if such claim arises from infringement, suspected infringement or alleged infringement due to:
- 12.E.A | use of any of the Software and/or the Documentation in combination by any means and in any form with Software or equipment not specifically approved by cdmdotnet, or in a manner or for a purpose not reasonably contemplated or authorised by cdmdotnet; and/or
- 12.E.B | a breach by the Customer of clause 12.2.
13. Confidentiality, Security and Publicity
- 13.A | The parties recognise and acknowledge the confidential nature of any Confidential Information.
- 13.B | Neither party may use or disclose any Confidential Information other than:
- 13.B.A | to its employees to the extent necessary;
- 13.B.B | with the express prior written consent of the other party; and
- 13.B.C | to its professional advisers.
- 13.C | Each party agrees to implement such security arrangements as may be necessary to ensure that the secrecy of the Confidential Information is preserved.
- 13.D | Neither party may advertise or publicly announce any matter relating to the existence or the contents of the Scope or any other Agreement between cdmdotnet and the Client without the other party’s prior written consent, which shall not be unreasonably withheld. cdmdotnet shall be entitled to refer to the Customer as a client of cdmdotnet and provide extracts of its work in its portfolio.
- 13.E | The Customer shall indemnify cdmdotnet against any losses, costs (including solicitor and client costs), expenses, demands or liability, whether direct, indirect, consequential, or otherwise, and whether arising in contract, tort (including in each case negligence), or equity or otherwise, incurred as a result of any unauthorised disclosure or use of the Confidential Information by the Customer or any of its employees.
14. Limitation of Liability
- 14.A | Except for the warranty provided in clause 6, the Customer acknowledges that to the fullest extent permissible by law, the Services and the Software are provided without representations or warranties of any kind, either express or implied (unless otherwise stated in this Agreement), and all warranties and conditions, whether express or implied, are excluded including but not limited to implied warranties of merchantability and fitness for a particular purpose.
- 14.B | cdmdotnet will install, configure and integrate the Software, if so stated in the Specifications, however, cdmdotnet accepts no liability for any loss, damage or interruption caused directly or indirectly to the Customer’s computer network or IT Systems, internet connections or data as a result of such installation, configuration or integration.
- 14.C | cdmdotnet, its officers, employees or agents will not be liable in contract, tort, or otherwise to the Customer for any direct or indirect damage, loss or cost arising directly or indirectly in respect of the goods or Services supplied or from any of cdmdotnet’s acts or omissions.
- 14.D | If the Customer is using the Services for the purposes of a business, then it agrees that the provisions of the Consumer Guarantees Act 1993 will not apply to its use of or any reliance on any Services.
- 14.E | If cdmdotnet is held liable to the Customer for any reason, cdmdotnet’s maximum liability is the amount paid by the Customer for the Services to which the liability relates.
- 14.F | No claim will be valid unless the Customer gives cdmdotnet written notice of the claim within 3 months after it becomes aware or should have become aware of the circumstances giving rise to such claim.
- 15.A | Either party may terminate this Agreement immediately by notice in writing, upon:
- 15.A.A | the other party committing any material breach of this Agreement that is incapable of remedy;
- 15.A.B | the other party failing to remedy any breach of this Agreement that is capable of remedy, within 30 days of notice of that breach having been given by the non-defaulting party to the other party; or
- 15.A.C | the commencement of liquidation or the insolvency of the other party (except for the purposes of solvent amalgamation or reconstruction), or upon the appointment of a receiver, statutory manager or trustee of the other party’s property, or upon an assignment for the benefit of the other party’s creditors, or upon execution being levied against the other party, or upon the other party compounding with its creditors or being unable to pay its debts in the ordinary course of business.
16. Consequences of Termination
- 16.A On termination by either party in accordance with clause 15, the licence granted under this Agreement shall terminate immediately. The Customer shall cease to use cdmdotnet’s Intellectual Property (including all Software and Documentation) and shall deliver to cdmdotnet (or destroy at the cdmdotnet’s option) all copies of the Software and the Documentation and any material containing the Intellectual Property and any related documents.
17. Force Majeure
- 17.A | Either party may suspend its obligations to perform this Agreement if it is unable to perform as a direct result of a Force Majeure Event, by notifying the other party giving details of the Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event continues.
- 17.B | Where a party’s obligations have been suspended pursuant to clause 17.1 for a period of 30 days or more, the other party may immediately terminate this Agreement by giving notice in writing to the other party.
- 18.A | The Customer shall not assign its rights under this Agreement without the prior written consent of cdmdotnet.
- 19.A | The Customer shall not subcontract any of its obligations under this Agreement without the prior written consent of cdmdotnet.
- 19.B | cdmdotnet may, subcontract the performance of this Agreement in whole or part. cdmdotnet may, without the consent of the Customer, engage individuals on a subcontract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of any Services pursuant to this Agreement.
20. Entire Agreement
- 20.A | 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.
21. Further Assirances
- 21.A | The parties must each do all such further acts (and sign any documents) as may be necessary or desirable for effecting the transactions contemplated by this Agreement.
- 22.A | Except as specifically provided, no amendment to this Agreement will be effective unless it is in writing and signed by both parties.
- 23.A | No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
- 24.A | The agreements, obligations and warranties contained in this Agreement shall not merge on completion of the transactions contemplated by it but will remain in full force until satisfied.
25. Partial Invalidity
- 25.A | If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.
- 26.A | Any notice or other communication in connection with this Agreement shall be:
- 26.A.A | in writing;
- 26.A.B | marked for the attention of the person specified in the Scope or any replacement person notified by the relevant party; and
- 26.A.C | left at the address or sent by prepaid post or facsimile to the address or facsimile number of the relevant party specified in the Scope, or any replacement address or facsimile number notified by that party.
- 26.A.D | by email to firstname.lastname@example.org
- 26.B | Notices or other communications are deemed received:
- 26.B.A | if delivered by hand, on delivery;
- 26.B.B | if delivered by post:
- 26.A.B.A | on the third day following posting if sent and received within New Zealand; and
- 26.A.B.B | on the tenth day following posting to or from an overseas destination.
- 26.B.C | if delivered by email, on production of a transmission report by the email system from which the email was received in its entirety to the email address of the recipient, specifying the correct email address, the date and time of transmission and that transmission was successful, provided that the onus of proving receipt shall be on the sender.
27. Dispute Resloution
- 27.A | Where any dispute arises between the parties concerning this Agreement or the circumstances, representations, or conduct giving rise to this 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 27.
- 27.B | 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 7 days of 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.
- 27.C | 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 mediation.
- 27.D | The mediation must be conducted in terms of the Resolution Institute Standard Mediation Agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his/her fee determined by the Chair for the time being of Resolution Institute.
28. Governing Law
- 28.A | This Agreement shall be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.