Terms of Trade

All services supplied by GPSit Group Limited are supplied on and subject to the following terms of trade (“Terms of Trade”).

1. Definitions

1.1            “Customer” means the Customer or any person acting on behalf of and with the authority of the Customer.

1.2            “Services” means all services supplied by GPS-it to the Customer under the applicable Contract (including any advice or recommendations) and also includes any goods or materials supplied by GPS-it incidentally to such services.

1.3            “GPS-it” means GPSit Group Limited (incorporated with company number 1143392), located at 275 Cameron Road, Tauranga and its successors and assigns.

1.4            “Contract” means these Terms of Trade together with: (i) any statement of work or written estimate provided by GPS-it to and accepted by the Customer; any quote for Services provided by GPS-it to, and accepted by the Customer and (ii) any order/instruction provided by the Customer to GPS-it to the extent accepted by GPS-it in writing, in each case which are entered into with respect to the supply of the relevant Services.

2. Price

2.1            Unless otherwise agreed in writing, the price for the Services (“Price”) shall be the price payable (if any) as set out in any Contract for the relevant Services (plus the invoice administration charges referred to in clause 2.5 below). Where no price for services has been provided by GPS-it, the Price shall be the cost of the Services as calculated by GPS-it on a time and materials basis based on GPS-it’s then current charge out rates and time spent on the Services and the materials actually used (plus the invoice administration charges referred to in clause 2.5). Where any Contract contains a price estimate provided by GPS-it the estimate is indicative only and the actual Price will be calculated on a time and materials basis.

2.2            The scope of the Services and the associated deliverables (if any) are limited to the matters specifically referred to in the statement of work supplied by GPS-it. Any additional services or deliverables or any variation to the Services requested by the Customer will be at GPS-it’s discretion. Additional services/deliverables or variations will result in an increase to the Price as agreed by the parties or, in the absence of agreement, as calculated by GPS-it on a time and materials basis.

2.3            Unless otherwise stated, prices are quoted exclusive of GST, and the Customer must pay GST in addition to the Price.

2.4            Unless agreed otherwise in writing, GPS-it may charge the Customer for any expenses incurred in connection with the provision of the Services, including (without limitation) the engagement of subcontractors, travel, materials, consumables and communications charges. GPS-it may charge for such expenses based on a reasonable estimate of GPS-it’s costs rather than actual costs incurred. GPS-it will not be obliged to incur any expenses on the Customer’s behalf and may request payment of expenses in advance.

2.5            GPS-it will charge an invoice administration charge in the sum of $130 plus GST, for every invoice issued by GPS-it to (or as directed by) the Customer in relation to the Services.

3. Acceptance

3.1            The Customer will confirm its acceptance of the Price and the relevant Contract by providing an order/instruction to GPS-it or by other acceptance of the Contract. Acceptance by a Customer includes providing an email confirmation or electronic confirmation via GPS-it’s CRM (customer relationship management) system. Any statement of work, quote or estimate is only valid if accepted by the Customer within 30 days or unless otherwise agreed in writing. GPS-it may cancel or postpone any order/instruction without liability if it considers the order/instruction uneconomic or impractical to fill.

3.2            When the Customer comprises more than one person, the signatory to the Contract on behalf of the Customer warrants that he/she/they has/have the ability to bind the Customer and acknowledges that each of the parties making up the Customer is jointly and severally liable for all amounts payable to GPS-it by the Customer in accordance with the Contract. If the Customer is acting as the trustee of any trust (whether disclosed or not), then the Customer declares that it is entering into the Contract both in its own capacity and as trustee of the trust with the ability to bind and the intention of binding both. Where the Customer is a company, the Customer must, if required by GPS-it, procure guarantees that are provided by the Customer’s shareholders/directors to GPS-it’s satisfaction. This clause 3.2 is an essential term of the Contract, and GPS-it is not obliged to provide any Services if the requirements set out in this clause are not met in full.

3.3            Upon acceptance of a Contract, the Customer accepts and acknowledges that such Contract is irrevocable and can only be rescinded in writing by the manager of GPS-it.

3.4            Unless otherwise expressly agreed by GPS-it any documents that together form a Contract shall apply in the following order of precedence:

• • • First, any statement of work, estimate or quote which will prevail over each of the following:
    • Second, these Terms of Trade which will prevail over the following:
    • Third, any order or instruction provided by the Customer to GPS-it (to the extent accepted by GPS-it in writing).

3.5           Subject to clause 3.6, where the Customer wishes to cancel any Services after GPS-it has commenced the provision of such Services (or incurred any costs in connection with the provision of such Services), then the Customer must pay to GPS-it a cancellation fee equal to the higher of: (i) 50% of the Price; and (ii) the costs (including internal costs) incurred by GPS-it in connection with the provision of such Services up until GPS-it’s receipt of the Customer’s written notice of cancellation (plus GST in each case). Such amount shall be invoiced by GPS-it and paid by the Customer in accordance with clause 4.

3.6           The Customer may not cancel the provision of the Services if (in the opinion of GPS-it) the work required to be undertaken by GPS-it in connection with the provision of the Services is substantially complete when notification of cancellation is received.

4. Terms of Payment

4.1            GPS-it shall invoice the Customer for Services supplied monthly in arrears unless stated otherwise in the relevant statement of work or estimate and payment shall be made by the Customer by the 20^th of the month following the date of invoice (unless in each case otherwise provided in the statement of work or estimate). The Customer may not withhold the Price or deduct or set-off any amount against the Price.

4.2            If the Price is not paid in full by the due date, GPS-it is entitled (without prejudice to its other rights and remedies) to charge the Customer interest on the unpaid overdue amount at the rate of 2.5% per month (or part month) subject to a minimum charge of $25.00 per month. GPS-it may at its option suspend the provision of Services under all Contracts with that Customer, regardless of the term of such Contracts, until the overdue accounts are paid in full.

4.3            Notwithstanding clause 4.1, GPS-it is under no obligation to supply Good and Services on credit to the Customer.

4.4            Notwithstanding clause 4.1. at any time GPS-it may (without cause) suspend or cancel the Customer’s credit or require the Customer to provide part or full payment prior to the Services being supplied.

4.5            The Customer agrees that GPS-it has sole discretion to apply payments from the Customer to any transaction or GPS-it invoice notwithstanding that the Customer may have applied the payments to a particular transaction or invoice and has supplied a remittance advice to GPS-it showing applied payments.

5. Provision of Services

5.1           GPS-it shall have the right to dictate which personnel are involved in the provision of the Services and may substitute suitable personnel at its sole discretion.

5.2           The Customer will make each of the following available to GPS-it, in each case to the extent reasonably required by GPS-it in connection with the provision of the Services and in a timely manner:

• • • Any Customer personnel (including subject matter experts).
    • Any information reasonably required by GPS-it.
    • Access to all required systems, hardware and software.

5.3           The Customer agrees and acknowledges that GPS-it may record calls with the Customer (and the Customer’s personnel and representatives) for quality control and/or record keeping purposes.

6. Intellectual Property/Confidentiality

6.1           Each party will retain the rights to any of its own background intellectual property that was in existence prior to the relevant Contract. To the extent necessary for the Contract, each party grants to the other a royalty-free, non-transferable, non-exclusive right to use such background intellectual property for the term of the Contract. GPS-it may (but shall not be required to) continue to store any of the Customer’s background intellectual property after the term of the Contract. Access to any such intellectual property by the Customer (other than as required for the provision of the Services) shall be subject to a fee. Subject to anything to the contrary contained in the Contract, any intellectual property created during the performance of and in relation to the Contract shall belong to GPS-it. Unless otherwise agreed the Customer may reproduce any map, drawings or other documentation produced by GPS-it for the Customer pursuant to the Contract as the Customer reasonably requires.

6.2           The Customer acknowledges that it has no right to use any of the documentation or other intellectual property relating to or incorporated in the Services until such time as the Price has been paid in full.

6.3                   To the extent that the Customer is provided with any confidential information of GPS-it in connection with the provision of the Services (“Confidential Information”) such information shall remain at all times the property of GPS-it. The Customer shall keep the Confidential Information confidential at all times provided that the Customer may disclose the Confidential Information to such of its employees as is reasonably necessary for the Customer to receive the benefit of the Services, to the extent required by law or if the information becomes available in the public domain other than by a breach by the Customer of its obligations under these terms. Where the Customer discloses any Confidential Information to an employee the Customer must ensure that such employee complies with the Customer’s obligations under these Terms. The Customer must destroy or return all Confidential Information in its possession upon request by GPS-it.

7. Limitation of Liability

7.1            To the maximum extent permitted by law all warranties implied by customary practice, statute or at law are excluded. GPS-it’s liability for any non-performance of services or defective services, parts or goods or for any cost, loss, damage, expense, proceeding or claim arising directly or indirectly in relation to the Services or a Contract, whether arising from contract, tort (including negligence) or otherwise, shall be limited to (at GPS-it’s option): (a) replacing the affected parts or goods or re-performing the affected services; or (b) providing a refund of the purchase price paid for the affected parts, goods or services or credit for the invoice value of the affected parts, goods or services (as the case may be). GPS-it is not responsible for any defect, loss or damage that results partly or wholly from: (a) the act or omission (including negligence) of the Customer or any third party; or (b) any cause beyond GPS-it’s reasonable control. These exclusions apply, without limitation, where the affected goods, parts or services have been wholly or partly provided by third parties. In no circumstances shall GPS-it be responsible for any indirect, consequential or special loss, loss of profits or economic loss suffered by the Customer or any other party.

7.2            If the Customer wishes to make a claim against GPS-it in relation to any Contract the Customer must give notice in writing setting out details of the claim and give GPS-IT a reasonable opportunity to respond to the claim. The Customer will not be entitled to make any claim against GPS-it unless it has given written notice of the claim to GPS-it by the date that is the earlier of: (a) 12 months after the Customer first became aware of the circumstances giving rise to the claim; or (b) 12 months after the date on which GPS-it last provided any Services in relation to the relevant Contract.

8. Health and Safety

8.1            Each party acknowledges their respective responsibilities under the Health and Safety at Work Act 2015.

9. Consumer Guarantees Act

9.1            Where the Customer is also in trade, and the Services are supplied and acquired in trade, GPS-it and the Customer each agree to contract out of the provisions of the Consumer Guarantees Act 1993.

10. Default and Termination

10.1          GPS-it may withhold provision of the Services or terminate any Contract where the Customer breaches the Contract and fails to remedy such breach in 14 days. Termination is without prejudice to GPS-it’s accrued rights. The Customer indemnifies GPS-it for any loss, damage or cost arising from the Customer’s breach of these terms or from any act or omission of the Customer or any person under its control.

11. Costs

11.1          The Customer agrees to pay all of GPS-it’s costs, both collection and legal (including solicitor/client costs), incidental to the enforcement or attempted enforcement of GPS-it’s rights, remedies and powers under any Contract.

12. Timing

12.1          Any time specified for delivery of the Services is approximate only. Timing is not guaranteed. Without limiting the foregoing, GPS-it is not responsible for any delay or non-performance of the Services to the extent that it is caused by any failure or delay in the Customer meeting its obligations under these terms.

13. Force Majeure

13.1          GPS-it is not liable for any failure to perform its obligations under any Contract if such failure is as a result of Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disasters), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, epidemic, pandemic or associated government restrictions or guidelines, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity, telephone, broadband or data services, act of a third party, any deficiency in the systems, data, software or hardware of the Customer, or any other forces or matters outside of GPS-it’s reasonable control (force majeure).

14. General

14.1          If any provisions of these Terms of Trade (or any associated Contract) shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired,

14.2          All Goods and Services supplied are subject to the laws of New Zealand as of the date of the applicable Contract, and GPS-it takes no responsibility for changes in the law coming into force after the date of the applicable Contract.

14.3          GPS-it reserves the right to review these Terms of Trade at any time and from time to time. If, following any such review, GPS-it wishes to change these Terms of Trade, such change will take effect from the date on which GPS-it notifies the Customer of that change.

14.4          These Terms of Trade (as expressly modified by any applicable statement of work or quote prepared by GPS-it and accepted by the Customer) shall apply to all orders accepted by GPS-it or quotes approved by the Customer and shall prevail and take precedence over any prior written document or oral communication.

14.5          In these terms, headings are used for convenience only and shall not affect the interpretation of any clause. No delay or failure by GPS-it to act or insist on any right shall be regarded as a waiver, and every right remains enforceable and may be exercised by GPS-it at any time. These terms are governed by New Zealand law and the New Zealand courts have non-exclusive jurisdiction in respect of these terms.

14.6          GPS-it collects personal information, including names, e-mail addresses, addresses, phone numbers and interactions with GPS-it. GPS-it also records and/or transcribes calls with customers for quality control and/or record-keeping purposes. GPS-it collects personal information in order to provide the Customer with the Services, to improve the Services, to enforce GPS-it’s rights under a Contract, to market GPS-it’s goods and services to the Customer and for the purposes set out in any credit application that GPS-it may require the Customer to complete. Besides GPS-it’s staff, GPS-it may share the Customer’s information with third-party service providers (including HubSpot, Teamwork and Zespri) and related companies in order to provide the Services. If the Customer fails to provide GPS-it with the personal information, GPS-it may be unable to provide the Services. The Customer has the right to ask for a copy of any personal information GPS-it holds about the Customer and to ask for it to be corrected if the Customer thinks the information is wrong. The Customer can do this by contacting GPS-it at service@gpsit.co.nz.

15. Dispute

15.1          If either of the parties has any dispute with the other in connection with any Contract, the party that considers that there is a dispute will promptly give full written particulars of the dispute (“Dispute Notice”) to the other party and the parties must meet together within 7 days of the Dispute Notice to try and resolve the dispute in good faith. If the dispute is not resolved within 14 days of a party’s receipt of a Dispute Notice, either of the parties may, by notice, require that the dispute be submitted for mediation by a mediator agreed by the parties, or if no agreement as to the identity of the mediator can be reached within 7 days, a mediator nominated by the President of the New Zealand Law Society. The mediator will determine the procedure and timetable for mediation. The costs of the mediation will be shared equally by the parties. If, within 7 days following the commencement of the mediation, the dispute remains unresolved, either party may pursue its legal rights (including commencing any court proceedings). Where any dispute relates to any monies owed by the Customer to GPS-it, the Customer must pay the undisputed part of the outstanding monies owed before commencing any dispute process.