On acceptance of these OSS Group Limited (“OSSG”) Terms of Business, the Customer and OSSG acknowledge that all goods and services provided by OSSG to the Customer shall be provided on the following terms and conditions. In addition to any other form of acceptance of this application, acceptance shall be deemed to have occurred in any event upon delivery by OSSG to the Customer of any goods and services requested by the Customer.
With the exception of Customer Terms of Business (CTOB), nothing in these OSSG Terms of Business will derogate from any written agreement between OSSG and the Customer, and to the extent there is any conflict between any written agreement and these OSSG Terms of Business, the written agreement will prevail, in each case only to the extent that the written agreement specifically deviates from these OSSG Terms of Business, and then only as the context requires.
CONFIDENTIAL INFORMATION
Confidential information means any information relating to OSSG’s business or the technology or design of any good or item associated with any good or service, any information relating to these terms or their subject matter, any information gained by the Customer through its dealing with OSSG that the Customer should reasonably assume is confidential, and any information notified by OSSG to be confidential.
The Customer acknowledges the confidential nature of and OSSG’s intellectual property rights in, the confidential information and will not use, copy or disclose any confidential information, and OSSG will not disclose any confidential information that it receives from the Customer other than:
As required by the New Zealand Stock Exchange Listing Rules;
In good faith and in proper furtherance of the objects of these terms; and
To its legal advisors; or
Information already in the public domain
WARRANTIES
No warranty or condition will be applied against OSSG by any statute, at common law or otherwise and no representation, expressed condition, warranty or variation of these terms shall be binding on OSSG unless it is in writing and signed for or on behalf of OSSG.
The Customer agrees to take adequate precautions against damage to its operation that could be caused by interruption or errors, including making appropriate data backups, OSSG cannot be held responsible for any loss of the Customers data, and is not liable for any direct, indirect, consequential, incidental, special, punitive or other damages whatsoever (including without limitation, damages for loss of business profits, business interruption or loss of business information), even if OSSG has been advised of the possibility of such damages.
The Customer shall indemnify OSSG and its affiliates and hold OSSG and its affiliates free and harmless from any costs, expenses, loss or damage incurred by OSSG or its affiliates as a result of the Customer or any purchase from the Customer failing to comply with obligations contained in this section.
The Customer agrees that vendor (manufacturer) warranties do not include restoration of the system to the state prior to failure, only to the configuration and status of when the vendor shipped the product/s from the factory. Any additional work required by OSSG to reinstate the system to its previous state (pre-failure) will be charged separately, and the Customer agrees to pay for this.
The Customer shall indemnify OSSG and its affiliates and hold OSSG and its affiliates free and harmless from any costs, expenses, loss or damage incurred by OSSG or its affiliates as a result of the Customer on selling or reselling products or services of OSSG. If the Customer on sells or resells products or services of OSSG, the Customer will take adequate precautions to ensure that OSSG is protected and excluded from any possible liabilities or costs, and shall reimburse OSSG if such events occur.
OSSG does not warrant that any goods procured for resale to the Customer will be error free, that the use of the goods shall be uninterrupted, or that the goods will be fit for purpose.
Any liability of OSSG in the case of goods procured for resale to the Customer, shall be limited to either (at the choice of OSSG):
replacement of the goods, or
the supply of equivalent goods, or
part or all of the value of the charges made for the services provided.
RETURNS
Any returns of product supplied will be subject to the returns policy of the Manufacturer or importer of the product. OSSG is not able to enhance the terms available.
The Customer must notify OSSG in writing of goods they wish to return. No goods can be returned without authorization in writing from OSSG, which OSSG is not obliged to offer. Returns not authorized in writing shall not be accepted for return by OSSG, and will not be deemed to have been accepted even if delivered to and signed for by OSSG or its agents. Goods accepted for return will only be credited to the Customer's account if returned in the same condition as delivered to the Customer initially, and if received by OSSG within 14 days of the initial delivery. OSSG shall apply and the Customer shall pay within 7 days a restocking fee of 15% of the invoiced value of any products accepted for return.
CONSUMER GUARANTEES ACT (“CGA”)
It is a condition of sale that the Consumer Guarantees Act 1993 will not apply to any goods acquired for business purposes. The Customer acknowledges that all OSSG’s software, services and products under this agreement are provided for business purposes and agrees that the Consumer Guarantees Act does not apply to their supply by OSSG or acquisition by the Customer under this agreement.
Where the Customer is providing OSSG’s software, services or products (as applicable) to:
A consumer acquiring them for business purposes (as that term is defined in the Consumer Guarantees Act, 1993 (“Business Purpose”); or
A person who may, whether directly or indirectly, on-sell OSSG’s software, services or products to a consumer acquiring them for Business;
It must be a term of the Customer contract with that person that either the Consumer Guarantees Act, 1993 (“CGA”) does not apply in respect of OSSG’s software, services or products (as applicable) or, alternatively, that person will ensure that an agreement is entered into with the end consumer of OSSG’s software, services or products (as applicable ) to the effect that the CGA does not apply in respect of such software, services or products.
Where the Customer does not comply with the provisions of this clause it hereby agrees to indemnify OSSG against any loss OSSG may suffer in consequence of such breach including all solicitor client legal costs and disbursements in defending any action, which may be brought against OSSG.
Nothing in these terms is intended to have the effect of contracting out of the provisions of the CGA except to the extent permitted by that Act. Where it is mandatory that the CGA applies, these terms are modified to the extent, which is necessary to give effect to that intention.
DELIVERY AND RISK
OSSG will endeavour to arrange for supply of goods as quickly as possible, the costs of delivery to be by arrangement between the parties.
The property of OSSG in the goods remains with OSSG until OSSG has been paid in full for the goods.
The Customer is a bailee of the goods until such time as property in them passes to the Customer, and this bailment continues in relation to each of the goods until the price of the goods has been paid in full.
The goods will be at the Customers risk from delivery.
All claims for errors or short delivery must be made within seven days of delivery.
If OSSG is organising delivery it is entitled to deliver the goods between 8.00am and 5.00pm on any working day. If the Customer or an agent of the Customer is not present at the delivery site, then the goods may be left and deemed to be delivered and at the Customers risk from date of delivery.
When Customer equipment is stored on OSSG premises, whether for the purpose of storage only or maintenance of the equipment, the equipment is stored at the Customers risk.
The Customer agrees that if the Customer fails to pay for the goods within the period of credit (if any) extended by OSSG to the Customer, OSSG may recover possession of the goods at any site owned, possessed or controlled by the Customer, and the Customer agrees that OSSG has an irrevocable license to do so, and that OSSG shall be entitled to recoup the costs of such recovery from the Customer.
LICENSING
The Customer will comply with the terms of any license agreement applicable to any part of the goods and the Customer shall not copy the goods in whole or in part except to make copies as are necessary for the purpose of a bona fide system backup and security.
INTELLECTUAL PROPERTY
The Customer acknowledges that OSSG (or its supplier) is the sole owner of all Intellectual Property rights of any goods provided, and that the Customer must not copy, modify, reproduce, reverse, assemble or reverse compile or permit any other person to do the same to or in respect of the Intellectual Property, and must not make any modification to the Intellectual Property or the packaging except as authorized by these terms.
Codes, standards, and other intellectual property provided by the Customer to OSSG are confidential and remain the property of the Customer.
Codes, standards, and other intellectual property provided by OSSG to the Customer are confidential and remain the property of OSSG.
Codes, standards, and other intellectual property created by OSSG during the performance of services for the Customer are confidential and are shared by the Customer and OSSG. OSS Group shall have rights to store, use and continue to develop the generic frameworks and templates of the work products, without any Customer or Customer-specific information.
NON-SOLICITATION
Each party agrees not to hire, contract or otherwise engage the staff or contractors of the other party, during or within 12 months of termination of this agreement, without either:
the express written permission of the other party, or if this is not gained,
the payment of a recruitment fee of $40,000 by the hiring party to the other party, within 7 days of receipt of invoice.
LIMITATION OF LIABILITY
Subject to and to the extent permitted by applicable law, neither OSSG nor anyone else who has been involved in the creation, production, or delivery of the products or services that are under this agreement shall be liable for any direct, indirect, consequential or incidental damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of the use or inability to use the products or services, or provision of, or failure to provide, support, even if OSSG has been advised of the possibility of such damages. The liability of OSSG, to the extent that such limitation does not apply, shall in that case not exceed the sum of the invoice relating to goods or associated services the Customer is making a claim against, whether that liability arises for negligence, breach of warranty or otherwise.
ONGOING OBLIGATIONS
Where the Customer purchases software, or a service agreement, whether from OSSG or from a Manufacturer or Vendor and that agreement contains an automatic renewal, it is the responsibility of the Customer to meet that obligation or cancel the agreement within the terms of any such agreement. This obligation survives the termination of these Terms of Business.
PROFESSIONAL SERVICES
All work will to be performed during business hours, unless otherwise agreed.
Business Hours is considered to be Monday-Friday excluding public holidays, and between the hours of 08:00 to 17:00.
Our standard working day is 8 hours long.
OSSG will perform all Services using reasonable care and skill, and Comply with all reasonable (and lawful) directions from the Customer (including, but not limited to, in relation to safety and security requirements applicable to the Customer’s premises) in relation to the Services and all laws, regulations and rules applicable to the provision of the Services.
EXCUSABLE DELAY
A party will not be liable for any failure to perform its obligations if such failure is due to a cause beyond the reasonable control of that party.
TERMINATION WITHOUT PREJUDICE
Termination or expiry of an agreement will not affect the rights or obligations of the parties which have accrued prior to termination or expiry or which by their nature are intended to survive termination or expiry.
VARIATION
Any variation of an agreement must be in writing and signed by both parties.
REFERENCES
The Customer agrees that OSSG may refer to the client's name in discussions with other clients. The client agrees that generic non-proprietary information about the client's IT systems makeup may be discussed with other parties including suppliers and other Customers for the means of supporting the client and sharing information between OSSG Customers.
ELECTRONIC COMMUNICATION
The Customer agrees that OSSG can email the Customer and Staff (at work) promotional and informative emails from time to time.
BILLING
Fixed price services (commonly called a Base Service) will be invoiced in advance of work commencing and by the sixth working day of each month.
Time & Materials services will be invoiced by the sixth working day following the month the services were performed in.
Goods procured for resale to the Customer will be invoiced by the sixth working day after delivery to the Customer.
All references by OSSG to prices in any communication will be in New Zealand dollar currency and exclusive of GST unless stated otherwise.
PAYMENT
Unless otherwise agreed in writing by OSSG, full payment for the goods supplied shall be due on the earlier of:
"Due Date", or
If an order of goods procured for resale to the Customer exceeds $20,000 dollar value, it must be paid within 14 days of the date of the invoice.
Immediately upon the commencement of any action or proceedings by or against the Customer, which in the opinion of OSSG, might compromise the Customer's credit worthiness.
For the purposes of these terms, the "Due Date" will be the 20th day of the month following the date of the invoice.
Unless a credit account in the name of the Customer is established, OSSG requires a 10% deposit with all product orders, and the balance upon delivery. OSSG may choose at its sole discretion whether or not to provide a credit account and credit limit to the Customer. OSSG may request Customer information, which the Customer may optionally provide to OSSG for the purpose of determining a credit limit, in which case OSSG will keep such information confidential.
Payment for Products and Services shall be made in full without any deduction, whether by way of set-off, counterclaim, or any other equitable or legal claim on the Due Date.
If the Customer fails to pay any amounts due under this agreement or by the Due Date then OSSG may charge interest at the New Zealand Reserve Bank Official Cash Rate plus 10% per annum on the overdue amount, calculated from the date on which payment was due until the date payment is actually made by the Customer. The Customer acknowledges that charging of default interest under this clause does not constitute the granting of credit by OSSG to the Customer. The Customer agrees to pay to OSSG, in addition to interest, a monthly administration fee on each overdue invoice in the sum of $100.
Interest on overdue accounts and administration fee is without prejudice to any other rights of OSSG under this Agreement.
OSSG may refuse to supply any further goods or services and / or grant further extension of credit while any overdue amounts owing to OSSG remain unpaid.
OSSG may withdraw credit facilities at any time without notice.
If the Customer fails to make any payment or perform its obligations or is otherwise in breach of this agreement, the Customer shall be liable for and shall pay to OSSG all and any expenses incurred by it in enforcing its rights under this agreement (including full solicitor Court costs and any collection commission) upon demand.
OWNERSHIP
Ownership of goods shall not pass to the Customer until the Customer has paid all that is owing to OSSG. Until ownership has passed the Customer holds the goods on behalf of OSSG under the following conditions:
OSSG is permitted to enter onto the Customer's premises to inspect and/or repossess the goods. OSSG may repossess the goods at any time after;
the Due Date for payment of any of the goods;
or the commencement of the winding up of the Customer;
or the committing of an act of bankruptcy by the Customer;
or any attempt by the Customer to enter into a debt compromise arrangement with the Customer's creditors.
If the Customer sells the goods to a third party then the Customer is accountable to OSSG for all the proceeds derived from such a sale and shall hold such proceeds on trust for OSSG in a separate bank account. In all such dealings the Customer shall be deemed to be trustee of all proceeds for OSSG as beneficiary.
If the Customer manufactures, intermingles or deals with the goods in such a manner that they become an integral part of any other object then the Customer shall be deemed to do so as agent of OSSG and ownership of the goods will remain with OSSG as principal.
PERSONAL PROPERTY SECURITIES ACT (“PPSA”)
Upon signing these terms, the Customer acknowledges that:
These terms are a security agreement for the purpose of section 36 of the PPSA: and
A security interest is taken in all goods previously supplied by OSSG to the Customer (if any) and all goods that will be supplied in the future by OSSG to a Customer during the continuance of the parties' relationships.
The Customer undertakes to:
Enter into a General Security Agreement (as approved by the Auckland District Law Society), and to sign any further documents and/or provide any further information which OSSG may reasonably require to register a financing statement or financing charge statement on the Personal Property Securities Register;
Give OSSG not less than 14 days prior written notice of any proposed change in the Customer’s name and will use its best endeavours to ensure that a financing change statement is registered disclosing its new name; and
Immediately advise OSSG of any material change in its business practices of selling the goods which would result in a change of the nature of proceeds derived from such sales.
Unless otherwise agreed to in writing by OSSG, the Customer waives its rights to receive a verification statement in accordance with section 1.
GUARANTEE In consideration of OSSG approving this account application form and supplying goods to the Customer at the guarantor's request, the guarantor:
Guarantees payment of all monies due and owing to OSSG by the Customer from time to time and compliance by the Customer with the terms and conditions of this application.
Indemnifies OSSG against any loss OSSG may suffer should the Customer's contract with OSSG be lawfully disclaimed or abandoned by liquidator, receiver or other person.
The Guarantor covenants with OSSG that:
No release, delay or other indulgence given by OSSG to the Customer whereby the guarantor would have been released had the guarantor been merely a surety, shall release prejudice or affect the liability of the guarantor as a guarantor or as indemnifier.
As between the guarantor and OSSG the guarantor may for all purposes be treated as the Customer and OSSG shall be under no obligation to take proceeding against the Customer before taking proceedings against the guarantor.
The guarantee is for the benefit and may be enforced by any person entitled for the time being to receive the benefit of the agreement in place of OSSG.
Should there be more than one guarantor their liability to the guarantee shall be joint and several.
The Guarantors acknowledge that they fully understand the extent and nature of their liability as set out in these Terms of Business hereof and further acknowledge that they are entitled to take independent legal advice in this respect but have declined to do so.
SPECIFIC LETTER OF ENGAGEMENT TERMS
When OSSG provides contingent labour to the Customer under a Letter of Engagement ("LoE"), the terms and conditions in this clause 23 will also apply.
OSSG responsibilities associated with the LoE will include:
To deliver work as prescribed by the Customer`s management and in-line with the Service Description.
To ensure that time sheets and expenses are provided for approval by the Customers management on a weekly basis.
The Customers responsibilities associated with the LoE will include:
Management of all resource(s), project(s), tasks, processes and procedures relating to the engagement.
To provide an escalation point of contact for the purposes of issue escalation
To provide appropriate office space and resources, including but not limited to adequate work area, office supplies, workstations, logins and passwords as required by the OSSG resource to perform the allocated tasks.
To approve and sign the associated Time sheet/s to accurately reflect work effort (hours) OSSG resources have been engaged by the Customer.
The Customer will provide at least 2 weeks’ notice if it wishes to increase, or reduce, the length of the engagement as outlined in this LOE and, at this time, OSSG reserves the right to renegotiate the hourly rate(s) charged.
GENERAL
No failure or delay on OSSG’s part to exercise any right or remedy against the Customer shall operate as a waiver of such right or remedy.
If a particular provision of this agreement is terminated or held by a Court of law or administrative body of competent jurisdiction to be illegal, void, or unenforceable, such determination shall not impair the enforceability of the remaining parts of this agreement, which shall remain in force.
Unless otherwise stated, OSSG’s quotes shall exclude GST, courier fees, installation fees, support fees and are subject to change without notice.
The parties acknowledge that this contract constitutes a whole of the agreement between the parties and the Customer acknowledges that it has not relied upon any representation or assurances by OSSG other than those contained herein.
Each party agrees to execute and deliver any documents, including transfers of title, and to do all things as may reasonably be required by the other party to obtain the full benefit of this agreement according to its true intent.
Customer Terms & Conditions of Business (“CTOB”) do not supersede this Agreement unless the CTOB are specifically signed by a member of OSSG Management and OSSG Management specifically acknowledge this Agreement no longer applies. The following methods of forwarding CTOB must not be interpreted as specific agreement to CTOB:
Fulfilling an order where the Customer Purchase Order contains CTOB, or
Attaching CTOB to payment,
Letter to OSSG showing CTOB, or
Including CTOB as an attachment to, or in the body of an email, or
Referring OSSG to CTOB in any of the above forms of communication.
All quotes and proposals provided by OSSG will remain valid for two weeks beyond their date of issue, after this time it may be necessary for OSSG to review their validity if the Customer wishes to accept the proposal or quote.
