Last Updated: 31/10/2018
1. The Standard Total Connect Terms & Conditions of Business constitute part of any business Agreement with Total Connect Limited (Total Connect), unless otherwise specifically stated within an Agreement between the Parties.
2. The Standard Total Connect Terms & Conditions of Business may be updated from time to time by Total Connect and the updated version shall come into force from the time and date that are posted on the Total Connect website, www.totalconnect.co.nz.
Use of Brand
3. The Parties agree not to use the other Party’s name, logo or brand elements in any way without the prior written approval of the other Party. Approval to use the other Party’s name, logo or brand elements for the purpose of promotion and provision of Total Connect services to customers may not unreasonably be withheld.
Relationship of Parties
4. The Parties are independent entities and nothing in the Agreement creates, constitutes or evidences any partnership, joint venture, agency, trust or employer/employee relationship between the Parties and the Parties may not make, or allow to be made, any representation that any such relationship exists between the Parties. The Parties do not have the authority to act for or incur any obligation on behalf of, the other Party.
5. Total Connect may subcontract or assign the Agreement or any part of it by giving prior written notice to the other Party.
Disclosure of Confidential Information
6. Both Parties must at all times keep confidential and not directly or indirectly make or allow any disclosure or use to be made of any Confidential Information, except to the extent that the Parties agree in writing.
Return of Information and Property
7. On Termination of the Agreement, the Parties will each immediately deliver to the other all Confidential Information and property in their power, possession or control which belongs to the other Party.
8. The Parties will indemnify, hold harmless and defend the other Party from and against all proceedings, damages, fines, penalties, liabilities, losses, costs and expense incurred or suffered by the other Party resulting directly or indirectly from any representation or warranty or negligent act or omission given by a Party under the Agreement being untrue, inaccurate or incomplete, or any breach of, or default under, this Agreement;
9. Total Connect reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defence of such claim. You will not, in any event, settle any claim or matter without our written consent.
Limitation of Liability
10. To the extent permitted by law, neither Party shall be liable to the other for any consequential indirect or incidental damages or any loss of profits, anticipated revenue or business.
11. Total Connect shall have no liability to you for any failure to perform services under the Agreement, or for any delay in doing so that may be caused by an event or circumstance beyond our reasonable control including, without limitation, including but not limited to illness, staff absence, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, flood, fire, explosion, acts of terrorism, natural disaster, weather or accident.
12. Both Parties will use their best endeavours to assist the other Party to the Agreement, and all associations of the Parties, in dealing with and investigating any customer grievances and complaints, including providing all relevant information related to the grievances and complaints.
13. If a party disputes an output or hours worked under the agreement is billable, the party has 7 days from the provision of the output being provided or the date of the hours worked to raise the dispute through written communication. After 7 days of provision of the hours or output to the party to the Agreement these are deemed as having been received and accepted. After 7 days of the provision of hours or output being received and accepted all amounts agreed within the Agreement may be invoiced and must be paid without further dispute, and the party waives any further rights to dispute the validity of the billable output or hours completed.
14. If between the Parties to the Agreement, any dispute arises out of, or in connection with, this Agreement, neither Party is to commence proceedings relating to the dispute unless that Party has complied with the provisions of clause 15.
15. If a Party believes there is a dispute in relation to the Agreement, then:
15.1. It will notify the other Party in writing giving details of the dispute;
15.2. The dispute will then be promptly referred to a senior representative of each Party for resolution by negotiation within 10 business days;
15.3. During any dispute process, the Parties shall continue to comply with their respective obligations and may exercise their respective rights under the Agreement as if the dispute had not arisen.
16. Total Connect may update Pricing offered on an Agreement from time to time on a going-forward basis. The new Agreement Pricing shall come into effect only after 30 days from written notification.
Invoice & Payment Terms
17. Payment will be required within 14 days of invoice from Total Connect;
18. For agreement to pay upon invoice either credit to the value of one average invoice period shall need to be paid in advance or a valid credit card shall be required to be provided for payment security. Upon non-payment after 14 days of invoice you authorise Total Connect to use the credit held or to charge the credit card to complete payment of the outstanding invoice.
19. Credit held by Total Connect on your account can be redeemed against current outstanding or future invoices. Total Connect may automatically apply any available credit on your account first unless you have provided this credit as security for payment upon invoice payment terms. Unused credit will expire 12 months after the last transaction on your account. Credit held as security for payment upon invoice payment terms shall never expire and you may request it to be used at any time for outstanding debt payment or if there is no outstanding debt and the Agreement has been terminated you may request in writing for the credit held as security to be returned within 30 days.
20. If your Agreement is to pay with a credit or debit card, Total Connect may seek pre-authorisation of your credit or debit card account prior to your provision of services and invoicing to the value of one average invoice period to verify that the credit or debit card is valid and has the necessary funds or credit available to cover your requested service. You authorise such credit or debit card account to pay any amounts described herein and authorize Total Connect to charge all sums described herein to such credit or debit card account, with the addition of a 2.881% surcharge to cover costs incurred by Total Connect through the convenience of payment via this channel of payment. You agree to provide Total Connect updated information regarding your credit or debit card and account upon Total Connect's request and any time the information earlier provided is no longer valid. In the event debt remains outstanding, you will be responsible for any related collection costs.
21. Upon failure to make payment in accordance with these terms and conditions:
21.1. Total Connect may transfer, or sell the outstanding debt or authorise any third party (“Debt Collection Agency”) of its choosing to seek payment of the outstanding debt;
21.2. In addition, the other Party will be liable to pay for any costs or loss incurred by Total Connect, or the Debt Collection Agency required to enforce payment in accordance with these Terms and Conditions;
21.3. Any expenses, costs, or disbursements incurred by Total Connect in recovering any outstanding monies including debt collection agency fees or solicitor's costs shall be paid by the customer;
22. If one or more of the provisions of the Agreement is, or becomes illegal, invalid or unenforceable for any reason, the remaining provisions of the Agreement shall not be affected thereby and shall continue in full force and effect.
23. The Agreement is to be governed by and construed in accordance with the Laws of New Zealand.
24. Either Party may terminate the Agreement immediately by written notice if the other Party makes a material breach of any obligation under the Agreement and fails to remedy that breach within 20 business days of receiving a written notice requesting it to remedy the breach. Otherwise 30 days written notice is required to terminate an Agreement.
25. Any Termination of the Agreement shall be without prejudice to any accrued rights and remedies of the Parties up to and including the date of Termination.
26. Clauses 1 - 23 will survive the Termination or expiry of the Agreement.