ITCO Solutions Limited ('we, us, or ITCO"), is pleased to be able to offer you ("Client, you") online access to its Maxim Software, Microsoft products and other third party software as well as data storage services (the Services). These terms of service (Terms) describe what you can expect from us in respect of those of the Services which you have chosen to access, what your obligations are and generally, the terms on which we will provide you with the Services.
We use Microsoft best practice and the latest in software to deliver the Services to you. Reliability of the Services is, however, reliant in part on your computer equipment, network connection and your use of them. We will do our utmost to ensure smooth functioning of the Services at all times and in order to do so we may need your co-operation and assistance from time to time.
In addition to working with us to resolve any problems, you agree that you will:
Included in the fees you pay is our technical support of your use of the Services and associated software. That means that we will operate a help desk from 8:30 am to 5:30 pm on usual business days in Rotorua. The help desk operators will answer your questions and assist you with any difficulties you are experiencing with using Maxim Online or any of the associated software. We can make specific arrangements for you if you require support outside the usual hours.
It is your responsibility to determine whether the problem is with your computers, networks or network connection or some other local issue before contacting us. If you do contact our help desk and the problem is your local issue or user fault, we may charge you for the time we have taken to try to resolve the problem.
We are responsible for diagnosing and fixing errors in or failures of the Maxim Software and its integrated components (excluding user error). For any non Maxim software provided by third parties, we will do our best to resolve the problem but may be limited in what we can do because the software did not originate with us. We will do our best to promptly advise you of the nature of the problem and its resolution.
Any support services other than those described above can be provided but will incur an additional charge.
We expect that in ordinary circumstances there will be continuous availability of the Services at all times. However, we cannot guarantee that access to the Services will be completely uninterrupted.
We will use every effort to give you advance notice of any interruptions that may be necessary to carry out maintenance from time to time. We will also keep you informed and updated should there be any interruptions of service other than ordinary maintenance. To the extent that we are able, we will advise you of the source of the problem and what steps are being taken to correct it.
Also, the Services are linked to and dependent on services from others and accordingly, we will not be responsible to the extent that any disruptions are beyond our control.
Any data you store on our servers will belong to you and you have a right to use this data. We have put systems in place to ensure that access to data is restricted to individual users. We can also arrange for sharing of data among users of the same organisation on request.
Your data will be stored on our secure server and will also be backed up regularly throughout each business day. Details of how the ITCO backup processes function, their frequency, and options to modify such, are availble on request.
We warrant that we have the right to give you access to the Services. Otherwise, the Software is provided “as is” and all other warranties and conditions, express or implied including but not limited to implied warranties of merchantability or fitness for a purpose are excluded. We do not warrant that use of the services will be uninterrupted or error free, but we will make every endeavour to remedy issues promptly.
You agree that you will pay us the licence fees on a per user, monthly in advance basis, based on the user information supplied to us by you. You may change the number of users and thus, the fees, by notifying us that you wish to do so, with the effect taken in the month following the change. For the avoidance of doubt any user active in any part of a month will incur a full user fee for that month.
The fees we charge you are dependent on a number of fixed costs that we pay to others and those costs may increase. If those costs rise or if we otherwise determine that the fees are to increase, we will advise you of the increase at least 30 days prior to the increase coming into effect.
If you are late in making any payments it is your responsibility to contact us to make arrangements for payment of the outstanding amount. If you don’t contact us or you don’t agree to arrangements that are satisfactory to us in our sole discretion, we may terminate the Services on 30 days written notice to you.
If you fail to make payments under arrangements made under this paragraph we may terminate the Services on 30 days written notice to you.
If your access to the Services is terminated for non-payment, we will retain your data and will provide it to you subject to our agreeing on satisfactory arrangements for doing so.
We may charge interest on any overdue payment at the rate of 2% per month (compounded monthly) until the outstanding amount is received by us whether that is before or after judgment of a court for the outstanding amount. You will also pay to us all our costs (including solicitor’s costs) of collecting any outstanding amounts.
You may terminate the Services at any time on at least 30 days notice in writing to us.
We may terminate or suspend your access to the Services as described under “Charges and Payment” or immediately on notice in writing to you in any of the following circumstances:
Once we receive your notice that you wish to terminate your use of the Services, we will contact you to make arrangements to hand over data. You will be responsible for paying the reasonable costs of the hand over in advance. If you do not or if we are unable to contact you after reasonable efforts, we will not be responsible for any losses or expenses you incur as a result.
We have the right to discontinue providing access to any software other than the Maxim Software and the Microsoft and Magic xpa and Pervasive.SQL products where we are of the opinion that the software is not functioning to an acceptable level. If we do discontinue access to any software, we will refund you any prepayment of fees for access to the software after the date of discontinuance.
Also, there are limitations on the printers that can be supported through the Services. We can provide you with further information about those limitations and will advise you if we are not able to support your printer. We have the right to delete any printer drivers that cause problems with the print server.
We will make all reasonable efforts to maintain the confidentiality of any information you give us which is of a confidential nature and will only use that information to provide the Services to you. You will also maintain the confidentiality of our information which is of a confidential nature, including the terms in which we are providing the Services. Neither of us will be responsible to the other if we are required by law to disclose the confidential information of the other.
Microsoft allows us to provide you with access to Microsoft software on certain conditions. If we are giving you access to any Microsoft products, we are required to ensure that you agree that:
a) We, and not Microsoft, will provide technical support for the Microsoft products and services;
b) The intellectual property in the Microsoft products belongs to Microsoft and you won’t use that intellectual property without Microsoft’s consent;
c) We may give Microsoft your personal or company details;
d) You will not remove, obscure or modify any copyright, trademark or other notices that indicate who owns the products;
e) You will not reverse engineer, decompile or disassemble any of the products;
f) To the extent that it is allowed by law, Microsoft does not offer any warranties relating to the products and will not accept liability for any damage, whether direct or indirect, or consequential arising from your use of the Microsoft products or software services.
You agree to the foregoing and any amendments of those terms by Microsoft. You further agree that you will comply with the terms of any other third party software products that we provide you with access to, as we advise you of from time to time.
All intellectual property relating to the Maxim Software belongs to us. You have a limited right and licence to use that intellectual property, on these Terms. The intellectual property in third party software such as Microsoft products will remain with its owners. You also have the right to use any third party software (including Microsoft products) subject to these Terms and the terms of any licence to use third party software which you access through the Services.
As is usual commercial practice, we are providing the Services to you on the basis that if we are found to be liable to you in respect of the Services for any reason, our liability will be limited.
Our maximum aggregate liability to you for any harm or loss (including, without limitation, direct, indirect, special or incidental, consequential or punitive damages and loss of business or profit) arising under these Terms or in relation to the Services irrespective of the cause of the action including, without limitation, contract, equity, tort or breach of statutory duty), will be limited to the amount equivalent to the monthly fees you pay to us in the previous month.
If you are using the Services for a business purpose, you agree that the Consumer Guarantees Act 1993 does not apply to the supply of the Services to you.
You also agree that these terms set out the whole of our agreement in relation to the Services and you are not relying on any representations or statements we have made elsewhere about the Services.
You may wish us to provide you with other services from time to time which may include training, implementation or consultancy services or the development of software or modifications to software. If we provide any such service to you, the terms on which we do so will be the subject of a separate agreement.
If you are an individual you authorise us to collect, use and retain information about you and to disclose information about you to assess your credit worthiness. You have a right to access to that information and can ask us to correct it.
In addition, you agree that we may monitor your use of the Services in order to ensure the quality of the Services, compliance with these terms and for any other reasonable purpose associated with the Services
Any notices to be given by either of us under these Terms may be given in writing to the addresses on the front page by pre-paid registered post, fax or e-mail.
We may assign both our rights and obligations under these Terms to any third party without your consent and without any further documentation. You agree that if we do assign our rights and obligations, the third party will substitute us as a party to the agreement between us in respect of the Services.
a) You agree that these Terms and your use of the Services are governed by the laws of New Zealand and you submit to the non-exclusive jurisdiction of the courts of New Zealand.
b) This Agreement constitutes the entire Agreement between us in respect of the Services and there are no representations, understandings or Agreements relating to the Services or this Agreement matter which are not fully expressed in this Agreement.
c) ITCO reserves the right to review and make change to these terms and conditions at any time.
d) No waiver of any breach of this Agreement will be deemed to be a waiver of any other or any subsequent breach. The failure of either of us to enforce any provision of this Agreement at any time will not be interpreted as a waiver of the provision.
e) Any notice given under this Agreement will be in writing delivered to the relevant party, sent by post, or facsimile transmission at such address or number as may be notified in writing by each of us to the other from time to time. Any such notice will be deemed received at the time when the same is handed to or left at the address of the party to be served and if served by post 3 days after the day of posting and if served by fax on the day of sending to the correct fax number.
f) If you issue a purchase order in respect of the Services the terms of this Agreement will prevail over the terms of any such purchase order.