Terms and conditions

1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
In this Agreement, unless the contrary intention appears or the context requires otherwise:
Agreement means “these Terms and Conditions and any appendix or schedule to them”;
Charges mean the “charge or charges for the Services as listed in the Price Schedule”;
Confidential Information means “information relating to the Customer’s business affairs received by TIMG in the course of providing the Services and includes the Records and any Personal Information but excludes all information, which is in the public domain or was known by TIMG prior to the disclosure by the Customer”;
Contract Period means “the 36 month period commencing on the Start Date and each succeeding 36 month period throughout the Term of the Agreement”;
Customer means “the party named, its subsidiaries, successors and permitted assigns”;
Force Majeure Event means “any event outside the party’s reasonable control, including but not limited to an act of nature, government or quasi-government act or regulation, riot, act of terrorism, war, flood, fire, industrial disputes, epidemic, or any risk to health or safety”;
Goods means “any goods provided by TIMG”;
GST means “any consumption tax, goods and services tax, value-added tax and any similar tax, impost or duty”;
Initial Term means “the period specified on page 2 (or if not so specified, the period of 36 months) commencing on the Start Date”;
Insolvency Event includes the winding up, dissolution or cessation of business, the appointment of an administrator, or an official manager, an assignment for the benefit of creditors, scheme or arrangement with creditors, insolvency, bankruptcy of a party or any similar procedure;
Intellectual Property means “all intellectual property (registered or unregistered) and includes without limitation: customer information, drawings, inventions, improvements, technical data, formulae, computer programs, databases, designs, patents and trademarks”;
Media means “the physical objects on which digital data is stored”.
Personal Information has the meaning assigned to it in the Privacy Act; Privacy Act means “the Privacy Act 1993 as amended, and includes the regulations and any guidelines issued by the Privacy Commissioner from time to time”;
Records means “all written or printed material or other objects including but not limited to any information storage media (such as documents, paper records, magnetic tapes, rigid and floppy disks, CD ROMs, DVD, video tapes, microfiche and microfilm or other computer media) and any accompanying containers and packaging materials provided by the Customer to TIMG in connection with the Services”;
Services means “all of the services including, but not limited to, the collection, scanning, cataloguing, digitising, retrieval, refiling, tracking, swapping (including loading computer media into customer devices), delivery, storage or destruction of Records as referred to in the Price Schedule; and web hosting for the purposes of records management and viewing”; and the additional services offered by TIMG and requested by the Customer from time to time;
Special Conditions means “those conditions agreed by both parties and specified as such on the cover sheet of this Agreement”;
Start Date means “the date specified as the start date on page 2 of this Agreement, or if no date is specified, the date that this Agreement is executed by both parties”;
Term means “the term of this Agreement, being the Initial Term plus any subsequent rollover periods pursuant to clause 3.2”.
1.2. Interpretation
In this Agreement, unless the contrary intention appears:
a. The singular includes the plural and vice versa;
b. A reference to a person includes a reference to the person’s executors, administrators, successors, substitutes, assigns, employees, agents, representatives and contractors;
c. If a period of time is specified, and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
d. Headings in this agreement are inserted for convenience and do not affect the interpretation of this agreement;
e. A reference to a statute, mandatory guideline or other law includes regulations and amendments, or replacements of that statute, ordinance, code, guideline or law;
f. A reference to a clause or provision is a reference to a clause or provision under this Agreement.
1.3. The Special Conditions form part of this Agreement and prevail to the extent of any inconsistency between the Special Conditions and the Terms and Conditions of this Agreement.
1.4. Consumer Guarantees Act 1993: Where the Customer is a business (as “business” is defined in the Consumer Guarantees Act 1993), the Customer agrees that it is acquiring the Company’s services for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply. Where the provisions of the Consumer Guarantees Act apply, these Conditions will be read subject to the application of that Act, and in the case of any conflict, the provisions of that Act will apply.
2. SERVICES
2.1. TIMG agrees to provide the Services to the Customer on the Terms and Conditions of this Agreement and the Customer agrees to engage TIMG exclusively to provide the Services pursuant to the Terms and Conditions of this Agreement for the Term.
2.2. TIMG agrees, having regard to the nature of the Services being provided, to perform the Services in a proper and professional manner and in accordance with industry practice.
3. TERM OF THE AGREEMENT
3.1. This Agreement commences on the Start Date and continues for the Initial Term unless terminated earlier in accordance with clause 8. Either party may terminate this Agreement with effect from the end of the Initial Term by giving the other party written notice not less than 30 days before the end of the Initial Term.
3.2. If this Agreement is not terminated as at the end of the Initial Term, this Agreement continues automatically for equal succeeding periods (equivalent to the Initial Term) until it is terminated with effect from the end of the then current period by either party giving written notice to the other not less than 30 days before the end of that current period.
4. CHARGES AND PAYMENT
4.1. In consideration of the provision of Services by TIMG, the Customer must pay the Charges to TIMG in full 20 days after the end of the month in which the invoice is dated unless specified otherwise on the invoice.
4.2. In addition to the Charges, the Customer will pay to TIMG any GST or relevant taxes in respect of the provision of the Services, on the same date on which payment for the relevant Services are due and payable.
4.3. TIMG may vary the Charges on the anniversary of the commencement date or a date thereafter, by notice to the Customer giving 30 days’ notice to the Customer. The varied Charges will take effect from the date specified. Charges for third party licenced software provided on a month to month basis may be changed at any time provided 30 days’ notice of the change is provided to the Customer.
4.4. The Customer must pay an additional charge for any additional services requested by the Customer. The charges for additional services will be at TIMG’s then-current standard charge for that service (List Price).
4.5. All charges and payments payable by the Customer to TIMG under this Agreement must be paid free of set-off and without deduction.
4.6. At TIMG’s discretion the payment of an advance deposit and authorised direct debit/credit authority may be required against charges to be rendered.
4.7. If the relevant payment is not received from the Customer by the date when it is due and payable, TIMG may in addition to its rights and remedies at law or equity, do any one or more of the following:
a. Charge the Customer interest on the outstanding amount from the due date, at a rate equivalent to the BNZ Business Index Rate as at the due date plus a margin of 3% per annum and charged daily;
b. Recover from the Customer any reasonable costs, which TIMG may incur in recovering any outstanding amounts from the Customer;
c. Suspend all or part of any Service until the Customer has paid to TIMG all outstanding amounts;
d. Deliver the Records to the Customer’s address last notified to TIMG at the Customer’s risk and expense;
e. Terminate this Agreement in accordance with clause 8; and
f. Exercise its rights under the lien specified in clause 7.3(d).
4.8. Where any invoiced Charges remain unpaid for a period of 12 months or more and the Customer has not responded within a reasonable time to the most recent notice from TIMG in relation to the unpaid Charges, TIMG may, without further notice or compensation to the Customer, destroy the Records in its possession to which the unpaid Charges relate.
5. SALE OF EQUIPMENT, SOFTWARE AND OTHER GOODS
5.1. Ownership of the Goods remains with TIMG and does not pass to the Customer until the Customer pays all amounts owing to TIMG in full in respect of the Goods.
5.2. The equipment is at the Customer’s risk once within the Customer’s possession. The Customer shall insure the equipment for full replacement value whilst in its possession and ownership has not passed to the Customer.
5.3. The Customer grants to TIMG a security interest in the Goods and in any proceeds arising from the sale of the Goods to secure the obligations of the Customer to pay the purchase price for the Goods and any other obligations existing under the Terms and Conditions of this Agreement.
5.4. The Customer waives the right to receive a verification statement in respect of any financing statement registered on the Personal Property Securities Register in respect of the security interest created by these terms
5.5. If the Customer is in material breach of this Agreement or this Agreement has been terminated, TIMG may:
– instruct the Customer (in writing) to return the goods to TIMG promptly and at such a place as directed where ownership has not passed to the Customer; or
– take possession of the goods, where ownership has not passed to the Customer. For the purposes of taking such possession, TIMG, its employees or agents may enter the premises or place where TIMG believes the goods to be located to enable TIMG to recover the goods. In such event:
a. The Customer gives licence to TIMG, its employees and agents to enter, and otherwise to use reasonable force to enter, any premises or place to effect repossession without being liable to the Customer or to any person claiming under the Customer for doing so;
b. The Customer releases TIMG from any liability for reasonable damage incurred in repossessing or attempting to repossess the goods and indemnifies TIMG, its employees and agents against any claims, actions, costs and losses any of them suffer or incur through the repossession or attempted repossession of the goods however arising; and
c. TIMG shall not be responsible in any way for any reasonable damage to the goods occurring during or after any repossession or attempted repossession.
6. TIMG OWNED EQUIPMENT
6.1. Except as otherwise specified in any Service Terms, TIMG shall, at its own cost, insure any of its equipment (whether owned or leased by TIMG) when located at the Customer’s premises.
6.2. The Customer shall notify TIMG promptly of any damage or loss of TIMG equipment in the Customer’s care.
6.3. If the Customer is in material breach of this Agreement or this Agreement has been terminated, TIMG may take possession of its equipment. For the purposes of taking such possession, TIMG, its employees or agents may enter the premises or place where TIMG believes the equipment to be located to enable TIMG to recover the equipment. In such event:
a. The Customer gives licence to TIMG, its employees and agents to enter, and otherwise to use reasonable force to enter, any premises or place to effect repossession without being liable to the Customer or to any person claiming under the Customer for doing so;
b. The Customer releases TIMG from any liability for reasonable damage incurred in repossessing or attempting to repossess the equipment and indemnifies TIMG, its employees and agents against any claims, actions, costs and losses any of them suffer or incur through the repossession or attempted repossession of the equipment however arising; and
c. TIMG shall not be responsible in any way for any reasonable damage to the equipment occurring during or after any repossession or attempted repossession.
7. THE CUSTOMER’S ACKNOWLEDGMENTS
7.1. The Customer warrants that:
a. The Customer is the owner of the Records, or the authorised agent of the owner of the Records, and has authority to contract with TIMG on the terms of this Agreement.
b. The Records are packaged and labelled in compliance with all relevant laws and regulations and are packed in a manner to withstand the ordinary risks of storage and/or transportation, having regard to the nature of the Records;
c. The Records are not volatile, explosive, radioactive or otherwise dangerous and are not liable to damage any other property owned by any other person and the Customer acknowledges and agrees that if any of the Records are or are liable to become so, TIMG may at any time destroy, or render harmless those Records without compensation to the Customer and without prejudice to any other rights of TIMG whether under this Agreement or at law;
d. It is the responsibility of the Customer to ensure that records and media stored do not contain sensitive authentication data, personal identification numbers, singly or in blocks, and that any Primary Account Number is, at minimum, rendered unreadable.
e. The Customer will comply with applicable health and safety legislation and the reasonable directions of TIMG to ensure the health and safety of all persons involved in the performance of the Services at its cost and the Customer acknowledges and agrees that where TIMG is not reasonably satisfied with the Customer’s compliance under this clause 7 it may suspend the relevant Service(s) until it is satisfied in relation to those issues;
f. The Customer will not store items which have an intrinsic value; and
g. That the information stored has been legally obtained and does not in itself breach any applicable law; and
h. That the person executing this Agreement is authorised to do so on behalf of the Customer.
7.2. The customer declares for the purposes of this agreement that:
a. With respect to records stored pursuant to this agreement that the value of such stored item is $1.00 per carton or equivalent area of open shelf files, container or other hard copy storage unit; and
b. With respect to Media the value of such stored items is limited to the cost of replacing the physical media itself.
7.3. The Customer acknowledges and agrees that:
a. TIMG has relied on the Customer’s warranties in clause 7.1 in providing the Services;
b. The Customer is satisfied that the Services are suitable for its Records and/or requirements;
c. TIMG will not be responsible for any loss due to natural degeneration of any Records over time;
d. Without limiting its rights at law or equity TIMG shall have a lien (general or particular, as the case may be) on the Records and any documents relating to the Records for all sums payable by the Customer to TIMG in respect of the Services.
e. TIMG is not a common carrier and does not have any liability to the Customer as such;
f. TIMG is not responsible for ensuring that the Customer complies with any statutory or other obligations that the Customer may have regarding the preservation, encryption or maintenance of the Records;
g. TIMG is not an insurer of the Records and TIMG accepts no responsibility for insuring the Records. The Customer may arrange and maintain the appropriate and adequate insurance to cover its liability against loss and/or damage to its Records;
h. In the event that TIMG is unable to perform the Services requested by the Customer due to the Customer’s default, and the Customer does not notify TIMG prior to TIMG commencing performance of the Services, the Customer will be liable to pay for those Services as if those Services had been rendered; and
i. Where the Customer acquires TIMG branded packaging materials it will not deal with such materials in any way that brings TIMG into disrepute including, without limitation, disposing of the materials in a non-secure way.
j. The Records are carried by TIMG at the owner’s (Customer’s) risk for the purposes of the Carriage of Goods Act 1979 and that the provisions of the Act which impose any liability or obligation on TIMG shall not apply to the extent that it is permissible to contract out of those provisions.
8. TERMINATION
8.1. Without limiting their other rights under this Agreement, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
a. An Insolvency Event occurs in respect of the other party; or the Customer becomes, or is deemed by TIMG to be, an unacceptable credit risk; or
b. The other party materially breaches this Agreement and fails to correct the breach within 14 calendar days after notice of that breach from the non-breaching party.
c. Without limiting the above, the following matters, may, at TIMG discretion, constitute a material breach of this Agreement by the Customer:
i. The Customer has breached agreed payment terms.
ii. Any warranty or representation given by the Customer to TIMG under this Agreement is materially false or misleading.
8.2. On receipt of notice of termination of this Agreement the parties will negotiate and agree to a reasonable plan for the return of Records to the Customer which is consistent with TIMG’s then current standard operating practices. Such plan shall commence, subject to clause 4.7, at the expiry of the notice period. For the avoidance of doubt, unless otherwise agreed by the parties in writing, the provision of any Services during the transition out period shall be provided on the same Terms and Conditions as this Agreement.
8.3. On termination or expiry of this Agreement, the Customer must:
a. Pay TIMG, prior to the removal or destruction of the Records:
i. all Charges, including Charges incurred to the date of termination or expiry of the Agreement and any Charges which accrue from the date of termination or expiry until the Records are returned, collected or destroyed; and
ii. any amounts specified in the Price Schedule for the permanent removal of such Records in addition to any other Charges normally paid for retrieval, transport and handling of the Records; and
b. Return to TIMG any equipment TIMG has provided to the Customer for the provision or the Services, or allow TIMG access to the Customer’s premises to collect such equipment.
8.4. The Customer acknowledges that TIMG has relied on information from the Customer as to the proposed period for which the Customer will require the Services in entering into this Agreement and setting the Charges. If the Customer terminates, or attempts to terminate, this Agreement during the Initial Term other than in accordance with this clause 8 or the Special Conditions, then the Customer agrees to pay to TIMG, by way of liquidated damages, a sum equal to 100% of the Charges that would have been payable to TIMG by the Customer for the unexpired portion of the Initial Term had the Customer continued to utilise the Services at the average rate incurred during the immediately preceding three months. Furthermore, the Customer acknowledges and agrees that the liquidated damages described in this clause 8.4 represent a genuine pre-estimate of loss.
9. CONFIDENTIALITY OF RECORDS
9.1. TIMG will take all reasonable measures to ensure that all Confidential Information held in connection with this Agreement is protected from misuse, unauthorised access, modification or disclosure.
9.2. The Customer will ensure that it has adequate processes in place for updating, amending or correcting Personal Information held by TIMG in connection with this Agreement. TIMG’s obligations in this regard will be limited to retrieving the requested Records for the Customer, such retrieval to be treated as part of the Services and charged accordingly.
10. LIABILITY
10.1. To the extent permitted by law, all conditions and warranties not expressly included in this Agreement are excluded.
10.2. The Customer acknowledges that where it is acquiring the Services for business purposes, the provisions of the Consumer Guarantees Act 1993 are excluded.
10.3. TIMG is not liable for and the Customer releases TIMG from all liability in tort, contract, bailment or otherwise whether due to negligence, breach, wilful act or omission or any other cause in respect of any loss, damage, expense, injury or death arising out of or in connection with this Agreement.
10.4. To the extent permitted by law, and despite any other clause of this Agreement, TIMG is not liable for any indirect economic or consequential losses arising out of or in connection with this Agreement, including, but not limited to, any loss of profits or loss of information contained in the Records.
10.5. To the extent that TIMG’s liability cannot be limited in the manner provided in this clause 10, TIMG’s total aggregate liability under this Agreement whether relating to direct or indirect loss, (including liability due to negligence, breach or wilful act or default) for all claims arising out of or in connection with this Agreement in any Contract Period shall be limited to the amount which is equivalent to the sum of 12 months Charges paid by the Customer to TIMG that preceded the claim, or $10,000, whichever is the lesser.
10.6. Where any order, writ or mandatory instrument relating to the Services or the Records is served on or presented to TIMG and appears on its face to be duly and properly created and executed, TIMG may comply with it and the Customer indemnifies TIMG for any loss or expenses in respect of TIMG so complying.
10.7. The Customer is liable for and indemnifies TIMG in respect of all losses, of whatever nature, caused or contributed to by the Customer and incurred by TIMG in connection with the provision of the Services.
11. OFFSITE DATA MANAGEMENT
This clause applies where TIMG provides offsite data management services to the Customer.
11.1. Encryption Key and Password Security
a. The Customer agrees to keep any Encryption Key and any associated passwords provided by TIMG secure and confidential.
b. TIMG is entitled to assume that anyone who accesses the Customer’s account or service using the Customer’s password is authorised by the Customer to do so.
11.2. Third Party Software Licences
a. The Customer agrees to comply with all licence terms of all software supplied by, or used in conjunction with, either directly or indirectly, the Services.
11.3. Encryption of Electronic Data
a. The software provided by TIMG must be used by the Customer to ensure data is encrypted and compressed in size prior to being transmitted to TIMG’ storage facility, to enable the data to be transferred via broadband internet to TIMG.
b. The Customer agrees to acquire the software required to carry out such encryption and compression.
c. The Customer agrees and acknowledges that under no circumstances is TIMG responsible or liable for the operation of such encryption and compression software.
11.4. Data Recovery After Termination
a. After the Service is terminated, TIMG is not responsible or liable for storing or retaining the Customer‘s data.
b. It is the sole responsibility of the Customer to copy and download any data that it requires, before the termination of the Services.
11.5. Customer’s Intellectual Property
a. In relation to any intellectual property that the Customer creates, modifies, stores, copies or transmits using the Services:
i. The Customer warrants to TIMG that it has the authority to create, modify, store, copy and/or transmit any and all intellectual property that it creates, modifies, stores, copies and/or transmits when using the Services.
ii. The Customer will indemnify and hold harmless TIMG against any and all breaches of the warranty provided in clause 7 and against any claim or demand by a third party that its rights have been breached.
iii. If a third party claims rights in such intellectual property, or TIMG has reasonable belief, that there may be a breach of the warranty in clause 7, TIMG is not obliged to provide the Services to the Customer until the issue has been resolved to the reasonable satisfaction of TIMG.
iv. No Intellectual Property Rights transfer from TIMG to the Customer as a result of this Agreement or through the provision of the Services.
11.6. Suspension of Services
a. TIMG may suspend the Services immediately where:
i. it is entitled to terminate under clause 8 but elects to suspend instead;
ii. there is a planned outage of the Services for operational and/or maintenance reasons;
iii. It is necessary to do so for unscheduled repair, maintenance or service of any part of TIMG’ systems.
b. TIMG will end a suspension of the Services as soon as reasonably practicable after the event or circumstance giving rise to the suspension has ended.
c. Except to the extent that the event caused by the negligent or wrongful act or omission of the person seeking to be released, the Customer releases TIMG from and agrees that TIMG is not liable for, liability or loss arising from, and costs incurred in connection with, damage or loss as a result of the Services being suspended.
11.7. Termination of Offsite Data Management Services
a. Notwithstanding TIMG’s rights to terminate this Agreement under clause 8 the Customer agrees and acknowledges that TIMG may terminate the Services immediately where:
i. it is necessary as a result of a force majeure event;
ii. TIMG has suspended the Service in accordance with clause 8, and such suspension is not lifted within 14 days;
iii. TIMG, acting reasonably, suspects that there has been fraudulent or illegal use of the Services;
iv. TIMG reasonably believes that the Customer is jeopardising the operation or quality of our systems, or the Services that TIMG supplies to other Customer.
12. DESTRUCTION SERVICES
12.1. Where the Services involve the destruction of Records which are already in TIMG’s possession, the title to those Records passes to TIMG upon TIMG receiving a written notice from the Customer authorising TIMG to destroy the Records.
12.2. Where the Services involve the destruction of Records which are not already in TIMG’s possession, the title to those Records passes to TIMG when the Records are collected from the Customer’s premises by TIMG or upon delivery to TIMG’s premises by the Customer, whichever is the earlier.
12.3. Any Records not contained in a bin provided by TIMG will not be collected unless otherwise agreed in writing between the parties, and it is the Customer’s responsibility to ensure that the correct material is removed by TIMG.
12.4. The Customer:
a. Must not remove, deface, cover up or interfere in any way with any equipment (including any identifying marks of ownership on equipment), provided by TIMG;
b. acknowledges that it has no proprietary rights to any equipment owned by and provided by TIMG and will not purport to sell, lease or otherwise part with possession of such equipment without TIMG’s prior written approval;
c. must compensate TIMG for any loss or damage to such equipment (caused by someone other than TIMG) at TIMG’s then current replacement cost for that item of equipment plus any other costs incurred by TIMG in connection with the loss of or damage to such equipment.
13. GENERAL
13.1. TIMG is taken to have duly delivered Records to an address if a person there signs for the Records. TIMG is taken to have duly collected Records from an address if TIMG gives a person there a receipt for the Records.
13.2. The Customer authorises TIMG to subcontract or assign the whole or any part of the provision of the Services.
13.3. TIMG will be responsible for the actions of its subcontractors in the provision of the Services and every right, exemption from liability and defence to which TIMG is entitled in accordance with this Agreement shall also be available and shall extend to protect all agents, employees, and subcontractors of TIMG.
13.4. Unless otherwise agreed in writing, TIMG reserves the right to store the Records at any of its storage locations.
13.5. Any claim for missing or damaged Records must be made in writing to TIMG within 14 days after delivery to the Customer, or of confirmation of loss.
13.6. No action, arising out of or in connection with this Agreement (other than an action by TIMG for any amount due to TIMG) may be brought more than one year after the cause of action first arose.
13.7. This Agreement will apply to the exclusion of all other Terms and Conditions provided to TIMG from time to time by the Customer which may be, without limitation, in the form of a purchase or work order. If the Customer provides TIMG with a purchase or work order containing Terms and Conditions, TIMG’s fulfilment of its obligations under this Agreement does not constitute acceptance of the Terms and Conditions of that purchase or work order.
13.8. This Agreement and any sub-schedules to this Agreement constitute the entire agreement between the parties and supersedes all previous oral or written proposals, representations, agreements and other communications between the parties in relation to the subject matter.
13.9. This Agreement may only be varied in writing by a document signed by a duly authorised officer of each party.
13.10. The failure by either party to observe or perform wholly or in part any obligation (other than an obligation to pay money) under this Agreement will not be a breach of this Agreement to the extent that the failure was caused by or arose as a result of a Force Majeure Event.
13.11. Any forbearance, indulgence or delay in enforcing any right or remedy by a party does not constitute a waiver of rights issued or in any way prejudice any right or remedy of that party.
13.12. If any part of this Agreement is unenforceable, invalid or void then that part of the Agreement is severed and the rights and obligations of the remaining parts of the Agreement continue to apply.
13.13. Any notice under this Agreement must be in writing and delivered personally, by facsimile or email, or by courier or prepaid post to the last known facsimile number, email address or address of the Customer.
13.14. In addition to the transport charge a Flexible Fuel Factor (FFF) surcharge may be applied by TIMG to account for fluctuations in transport fuel costs.
14. DISPUTE RESOLUTION
14.1. If a dispute arises under this Agreement, a party may give written notice to the other specifying the dispute and requiring its resolution under this clause (Notice of Dispute).
14.2. If the dispute is not resolved within 14 days of the Notice of Dispute, the parties may jointly refer the dispute to mediation in accordance with this clause.
14.3. If the parties are unable to agree on a mediator within 21 days of the Notice of Dispute, the mediator shall be appointed by the Chair of LEADR (Leading Edge Alternative Dispute Resolvers).
14.4. The parties must pay the mediator’s fees in equal shares. Each party must pay its own costs of the mediation.
14.5. If the dispute is not resolved within 28 days after the appointment of the mediator, the parties shall be free to commence court proceedings.
14.6. This clause does not prevent any party from obtaining any injunctive, interlocutory or declarative relief from a court, which may be urgently required.
15. SOFTWARE
15.1. Software used in the provision of services may fall into the following categories (as detailed in the Services Agreement):
a. Purchased from a third party by TIMG and resold to the Customer, transferring title to the use of the software, subject to the conditions outlined in clause 5, “reseller basis”;
b. Owned by one or more third parties and licensed to TIMG; Accordingly, TIMG and the Customer agree that such third parties retain ownership of and title to such software products. The warranty and indemnification provisions set forth herein shall not apply to software products owned by third parties. TIMG and Customer intend and agree that such software product is being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “buyer” or similar or derivative words are understood and agreed to mean “licensee”. Right of the customer to use the software is dependent on payment to TIMG of fees for the use of this service, and terminates where TIMG services are discontinued, withdrawn or upon expiry of the agreement.
c. TIMG proprietary software; notwithstanding anything to the contrary contained herein, TIMG retains all rights and interest in software products provided hereunder. TIMG grants the Customer a royalty-free, non-exclusive, non-transferable licence, without power to sublicense, to use software provided hereunder solely for the Customer’s own internal business purposes in connection with the services provided by TIMG, on the hardware products provided hereunder and to use the related documentation solely for Customer’s own internal business purposes.
15.2. Customer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties software products and related documentation, unless clear title to such a right is held.
15.3. Customer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products owned by or licensed to TIMG.
15.4. This license terminates where TIMG services are discontinued, withdrawn or upon expiry of the agreement. TIMG will also be entitled to terminate this license of the Customer fails to comply with any term or condition herein.
15.5. The Customer agrees, upon termination of this license, immediately to return to TIMG all software products and related documentation owned by or licensed to TIMG and all copies and portions thereof.
16. INTELLECTUAL PROPERTY
16.1. Where TIMG provides web-based or electronic technology as part of the Services, that technology is provided for use by the Customer as a licensee on a non-exclusive basis, solely for the purposes of making use of the Services provided by TIMG, and otherwise in accordance with any agreement between TIMG and the Customer specific to the use of that particular technology.
16.2. The Customer acquires only the right to use the technology via the internet (or other telecommunications connection as agreed between the parties) but does not acquire any rights of ownership, unless otherwise specified and the conditions for transfer of title from TIMG or a third party have been met.
16.3. The parties acknowledge that property in all Intellectual Property which arises pursuant to or during the course of the performance of this Agreement and relating to the business of or products marketed by TIMG is vested and shall vest in TIMG and the Customer undertakes to do all such acts and things to execute all such documents as may be necessary or effective to vest such property in TIMG.
17. ASSIGNMENT AND CHANGES OF NAME
17.1. The Customer acknowledges that they may not transfer or assign any benefit or obligation under these Terms & Conditions to any third party without prior written consent from TIMG, which will not be unreasonably withheld.
17.2. The Customer will formally notify TIMG of any change of name prior to the change of name coming into effect.
17.3. TIMG may at law assign its rights under this Agreement to any party at any time.
18. GROUPING AND SET OFF
18.1. In the event that Customer has dealings with one or more subsidiaries of Freightways Limited (Freightways), the accounts of each of the Customer with each subsidiary of Freightways may be combined so that the debit and credit balances are set off and a net amount only is owed by the Customer (respectively) to members of the Freightways group, or to the Customer (respectively) by members of the Freightways group. This clause is for the benefit of the Supplier, Freightways, and each other subsidiary company of Freightways.
19. GOVERNING LAW
19.1. This Agreement is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.