THE INFORMATION MANAGEMENT GROUP (NZ) LIMITED “NOT WASTED” STANDARD TERMS AND CONDITIONS
Not Wasted is a trading name owned and operated by The Information Management Group (NZ) Ltd which will be referred to as Not Wasted throughout the following Terms and Conditions.
1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the contrary intention appears or the context requires otherwise:
Address means the Customers address submitted to Not Wasted, or any new address to which the Customer moves or expands.
Agreement means “these Terms and Conditions and any appendix or schedule to them”;
Billing Period: means “the time that follows an advance payment for services before the next payment is due”
Charges mean the “charge or charges for the Services as listed on notwasted.co.nz”;
Confidential Information means “information relating to the Customer’s business affairs received by NOT WASTED 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 NOT WASTED prior to the disclosure by the Customer”;
Contract Period means “the 4 week period commencing on the Start Date and each succeeding 4 week 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 NOT WASTED”;
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 the Not Wasted Website Checkout Page 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 NOT WASTED in connection with the Services”;
Services means “all of the services including, but not limited to, the collection, delivery, destruction, recycling or disposal of waste and of Records as referred to on notwasted.co.nz; and web hosting for the purposes of ordering waste, destruction and recycling collections and the additional services offered by NOT WASTED and requested by the Customer from time to time;
Start Date means “the initial date that each service is ordered and paid for”;
Subcontractor means any contractor that NOT WASTED uses to facilitate Not Wasted services.
Term means “the term of this Agreement, being the Initial Term plus any subsequent rollover periods pursuant to clause 3.2”.
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. 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.
2.1. Only NOT WASTED Document Destruction offered through notwasted.co.nz is NAID compliant, all other waste services including but not limited to General waste, Mixed Recycling, Cardboard Recycling, Food and Compostable Packaging and Electronic Recycling are not suitable for the disposal of information and are not NAID compliant.
2.2. NOT WASTED agrees to provide the Services to the Customer on the Terms and Conditions of this Agreement and the Customer agrees to engage NOT WASTED exclusively to provide the Services pursuant to the Terms and Conditions of this Agreement for the Term.
2.3. NOT WASTED 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. NOT WASTED shall not be liable for any failure to perform its obligations under this agreement due to circumstances beyond its reasonable control.
2.4. NOT WASTED will collect bins on the schedule supplied to customers through notwasted.co.nz or emails at the time that an order for services is placed.
2.5. NOT WASTED will collect from businesses during its normal working hours unless other arrangements are made. All bins in the inner city must be removed from public places as soon as it is possible following collection. The area surrounding the bin should be kept clean and tidy and should not breach any Council bylaws relating to hygiene or health and safety.
2.6. The collection service may not run on public holidays – collection may be on the following workday unless otherwise agreed (It is the responsibility of the Customer to ensure enough bins are on site to cover duration between collections).
2.7. Not Wasted may vary the collection service agreement at any time by sending the Customer a written notice of the proposed variations. The Customer has 21 days to object, in writing, to the proposed variations. If no objection is received, then the proposed variations will apply. If the Customer does not accept the proposed variations, then NOT WASTED can terminate this agreement by giving seven days’ notice and all amounts owing under the agreement become payable immediately.
2.8. The Customer is responsible for ensuring that appropriate waste is deposited into the collection bins for each specific waste stream.
Please refer to bin contents information posted on notwasted.co.nz and bin stickers for clarification for each waste stream. Contact us directly with any questions about specific items.
2.9. Not Wasted will provide written notifications to Customers if an unacceptable waste is deposited in the source separated collection bins.
2.10. If the Customer continues to place unacceptable waste material into the collection bin(s) after two consecutive written notifications, Not Wasted may impose an additional charge of $20 + GST per bin for contaminated bins.
2.11. The Customer must inform Not Wasted where the bin or bins will be located for collection. If the collection bin(s) are not located in the agreed location at the time of collection they may not be collected and the full collection fee will apply.
2.12. The hirer undertakes not to overload the Bin. Bins are not to be loaded any higher than the sides of the Bin and are to be filled in such a manner as to prevent contents from falling from the bin during removal or while in transit.
2.13. E-waste recycling services: The bin will not be used for any other purpose than for waste materials excluding: tyres, TV’s, monitors, fridges, microwaves, polystyrene, asbestos, dead animals, dangerous or hazardous waste including but not limited to flammable or explosive products, car batteries, gas bottles, liquids, paints, or any other items deemed by the proprietor to be hazardous or unable to be disposed of at landfill. The hirer will observe and comply with all statutes, regulations and requirements governing the use of an e-waste Bin.
2.14. Document destruction: NOT WASTED will install in the Customer’s premises such secure and lockable bins or bags as required by the Client to accommodate the total disposal of all documents and papers which the Customer requires to be destroyed – with all waste being recycled where possible. Bins are for paper-based materials only. Collection of product waste, hard drives, or electronic waste is an on-request service. Please ring 027 564 7792 for pricing. NOT WASTED will uplift the bins or bags from the Customer’s premises within 24 hours of notice (metropolitan areas only) or as scheduled but not less frequently than 4 exchanges per annum (ensuring security/hygiene standards are maintained). NOT WASTED will destroy the documents and papers in a secure and supervised environment upon the Company’s own premises, following NAID (National Association for Information Destruction) guidelines. NOT WASTED provides confidentiality and security of the Customer’s documents and papers (as per NZSA Code of Practice for the Secure Destruction of Sensitive Material) once uplifted from the Client’s premises. A Certificate of Destruction is available on request. To ensure the confidentiality and security of the Customer’s documents and papers, the Customer agrees that, during the term of this Agreement, the Customer shall not engage any alternative contractor for confidential document destruction services and shall use the NOT WASTED service exclusively. The bins and bags installed in the Customer’s premises shall remain the property of NOT WASTED. The Customer shall however be responsible for the safety and care of the bins and bags whilst on the Customer’s premises. -If a COD is requested, a charge of $12.00 will be applied.
3. TERM OF THE AGREEMENT
3.3. 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 5 working days before the next billing period. Collections that have been purchased before the customer notifies Not Wasted of a cancellation of services will not be refunded.
3.4. 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 5 working days before the end of that current period.
3.5. At the end of the Initial Term, this agreement will be subject to an automatic renewal of the same term as the Initial Term unless otherwise notified in the 28 days prior to the renewal date.
4. CHARGES AND PAYMENT
4.3. In addition to the Charges, the Customer will pay to NOT WASTED 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.
4.4. NOT WASTED uses a third party payment processing provider for invoicing and payment processing of Not Wasted orders. The customer agrees to Not Wasted using a third party provider to retain customer and credit card information for the purposes of fulfilling Not Wasted orders.
4.5. The customer authorises NOT WASTED to charge their credit card for Not Wasted service charges which include: initial and reoccurring billing for services, one off payments for services, first delivery and final removal of bin fees and amounts payable for the damage, loss or failure to provide bins on request.
4.6. NOT WASTED may vary the Charges, by notice to the Customer giving 30 days’ notice to the Customer. The varied Charges will take effect from the date specified.
4.7. The Customer must pay an additional charge for any additional services requested by the Customer. The charges for additional services will be at NOT WASTED’s then-current standard charge for that service (List Price).
4.8. All charges and payments payable by the Customer to NOT WASTED under this Agreement must be paid free of set-off and without deduction.
4.9. If the relevant payment is not received from the Customer by the date when it is due and payable, NOT WASTED 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 NOT WASTED may incur in recovering any outstanding amounts from the Customer;
c. Suspend all or part of any Service until the Customer has paid to NOT WASTED all outstanding amounts;
d. Terminate this Agreement in accordance with clause 8; and
e. Exercise its rights under the lien specified in clause 7.3(d).
5. SALE OF EQUIPMENT, SOFTWARE AND OTHER GOODS
5.3. Ownership of the Goods remains with NOT WASTED and does not pass to the Customer until the Customer pays all amounts owing to NOT WASTED in full in respect of the Goods.
5.4. 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.
5.5. The Customer grants to NOT WASTED 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.
5.6. 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
5.7. If the Customer is in material breach of this Agreement or this Agreement has been terminated, NOT WASTED may:
- instruct the Customer (in writing) to return the goods to NOT WASTED 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, NOT WASTED, its employees or agents may enter the premises or place where NOT WASTED believes the goods to be located to enable NOT WASTED to recover the goods. In such event:
a. The Customer gives licence to NOT WASTED, 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 NOT WASTED from any liability for reasonable damage incurred in repossessing or attempting to repossess the goods and indemnifies NOT WASTED, 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. NOT WASTED shall not be responsible in any way for any reasonable damage to the goods occurring during or after any repossession or attempted repossession.
6. NOT WASTED OWNED EQUIPMENT
6.3. Except as otherwise specified in any Service Terms, NOT WASTED shall, at its own cost, insure any of its equipment (whether owned or leased by NOT WASTED) when located at the Customer’s premises.
6.4. The Customer shall notify NOT WASTED promptly of any damage or loss of NOT WASTED equipment in the Customer’s care.
6.5. If the Customer is in material breach of this Agreement or this Agreement has been terminated, NOT WASTED may take possession of its equipment. For the purposes of taking such possession, NOT WASTED, its employees or agents may enter the premises or place where NOT WASTED believes the equipment to be located to enable NOT WASTED to recover the equipment. In such event:
a. The Customer gives licence to NOT WASTED, 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 NOT WASTED from any liability for reasonable damage incurred in repossessing or attempting to repossess the equipment and indemnifies NOT WASTED, 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. NOT WASTED shall not be responsible in any way for any reasonable damage to the equipment occurring during or after any repossession or attempted repossession.
6.6. NOT WASTED will retain ownership of any wheelie bins provided for the service. The bin/s must be returned upon cancellation of the service. For General Waste, Mixed Recycling, Cardboards Recycling and Food Waste & Compostable Packaging services, a final removal fee applies which is calculated at $25 + GST for every three bins or less removed. In instances where Regular Document Destruction services are cancelled before three collections have taken place, the customer will incur a final removal fee of $40 + GST for every three bins or less removed.
6.7. If a bin is lost or damaged while in the possession of the Customer, NOT WASTED is entitled to charge the customer for reasonable costs of cleaning or replacement. Replacement bins will be charged at the following rates less 20% for each year that the bin was in use (rounded up to the nearest full year):
Under 240L $50 + GST
240L $85 + GST
660L $380 + GST
1100L $550 + GST
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 NOT WASTED on the terms of this Agreement.
b. 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, NOT WASTED may at any time destroy, or render harmless those Records without compensation to the Customer and without prejudice to any other rights of NOT WASTED whether under this Agreement or at law;
c. The Customer will comply with applicable health and safety legislation and the reasonable directions of NOT WASTED 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 NOT WASTED 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;
d. The Customer will not store items which have an intrinsic value; and
e. That the information stored has been legally obtained and does not in itself breach any applicable law; and
f. That the person executing this Agreement is authorised to do so on behalf of the Customer.
7.2. The Customer acknowledges and agrees that:
a. NOT WASTED 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. NOT WASTED is not a common carrier and does not have any liability to the Customer as such;
d. NOT WASTED 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;
e. NOT WASTED is not an insurer of the Records and NOT WASTED 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;
f. In the event that NOT WASTED is unable to perform the Services requested by the Customer due to the Customer’s default, and the Customer does not notify NOT WASTED prior to NOT WASTED commencing performance of the Services, the Customer will be liable to pay for those Services as if those Services had been rendered; and
g. Where the Customer acquires NOT WASTED branded packaging materials it will not deal with such materials in any way that brings NOT WASTED into disrepute including, without limitation, disposing of the materials in a non-secure way.
h. The Records are carried by NOT WASTED 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 NOT WASTED shall not apply to the extent that it is permissible to contract out of those provisions.
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 NOT WASTED 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 NOT WASTED 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 NOT WASTED under this Agreement is materially false or misleading.
8.2. 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 NOT WASTED, 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
b. Return to NOT WASTED any equipment NOT WASTED has provided to the Customer for the provision or the Services, or allow NOT WASTED access to the Customer’s premises to collect such equipment.
8.4. The Customer acknowledges that NOT WASTED 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 NOT WASTED, by way of liquidated damages, a sum equal to 100% of the Charges that would have been payable to NOT WASTED 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.
8.5. If either party breaches any of the terms in this agreement, the other party shall give written notice to the party in breach setting forth the nature of the breach. If the breach is not cured within 30 days from the date of such notice, the party not in breach shall then have the right to cancel this agreement upon a further 30 days written notice to the party in breach. Notwithstanding the foregoing, if the customer fails to pay the rates and charges when due, NOT WASTED may cancel this agreement upon 7 days’ notice to the customer.
9. CONFIDENTIALITY OF RECORDS
9.1. NOT WASTED 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 NOT WASTED in connection with this Agreement.
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. NOT WASTED is not liable for and the Customer releases NOT WASTED 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, NOT WASTED 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 NOT WASTED’s liability cannot be limited in the manner provided in this clause 10, NOT WASTED’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 NOT WASTED 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 NOT WASTED and appears on its face to be duly and properly created and executed, NOT WASTED may comply with it and the Customer indemnifies NOT WASTED for any loss or expenses in respect of NOT WASTED so complying.
10.7. The Customer is liable for and indemnifies NOT WASTED in respect of all losses, of whatever nature, caused or contributed to by the Customer and incurred by NOT WASTED in connection with the provision of the Services.
10.8. The Customer acknowledges that NOT WASTED may be subject to conviction for an offence or otherwise subject to liability under the Resource Management Act 1991 (RMA), and other applicable laws and regulations as a result of the Customer's actions, for example, placing hazardous or unacceptable waste in the bin for collection. The customer, therefore, indemnifies NOT WASTED to the extent permitted by law, against all losses or liabilities concerning any prosecution, claim, action or conviction of RSL under the RMA or any other applicable law or regulation, arising from any action or omission by the customer and depositing excluded material in the bin for collection.
11. OFFSITE DATA MANAGEMENT
11.1. Encryption Key and Password Security
a. The Customer agrees to keep any Encryption Key and any associated passwords provided by NOT WASTED secure and confidential.
b. NOT WASTED 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. Data Recovery After Termination
a. After the Service is terminated, NOT WASTED 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.
11.4. 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 NOT WASTED 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 NOT WASTED 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 NOT WASTED has reasonable belief, that there may be a breach of the warranty in clause 7, NOT WASTED is not obliged to provide the Services to the Customer until the issue has been resolved to the reasonable satisfaction of NOT WASTED.
iv. No Intellectual Property Rights transfer from NOT WASTED to the Customer as a result of this Agreement or through the provision of the Services.
11.5. Suspension of Services
a. NOT WASTED 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 NOT WASTED’ systems.
b. NOT WASTED 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 NOT WASTED from and agrees that NOT WASTED 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.
11.6. Termination of Offsite Data Management Services
a. Notwithstanding NOT WASTED’s rights to terminate this Agreement under clause 8 the Customer agrees and acknowledges that NOT WASTED may terminate the Services immediately where:
i. it is necessary as a result of a force majeure event;
ii. NOT WASTED has suspended the Service in accordance with clause 8, and such suspension is not lifted within 14 days;
iii. NOT WASTED, acting reasonably, suspects that there has been fraudulent or illegal use of the Services;
iv. NOT WASTED reasonably believes that the Customer is jeopardising the operation or quality of our systems, or the Services that NOT WASTED supplies to other Customer.
12.1. NOT WASTED is taken to have duly delivered Records to an address if a person there signs for the Records. NOT WASTED is taken to have duly collected Records from an address if NOT WASTED gives a person there a receipt for the Records.
12.2. The Customer authorises NOT WASTED to subcontract or assign the whole or any part of the provision of the Services.
12.3. NOT WASTED 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 NOT WASTED is entitled in accordance with this Agreement shall also be available and shall extend to protect all agents, employees, and subcontractors of NOT WASTED.
12.4. Unless otherwise agreed in writing, NOT WASTED reserves the right to store the Records at any of its storage locations.
12.5. No action, arising out of or in connection with this Agreement (other than an action by NOT WASTED for any amount due to NOT WASTED) may be brought more than one year after the cause of action first arose.
12.6. This Agreement will apply to the exclusion of all other Terms and Conditions provided to NOT WASTED 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 NOT WASTED with a purchase or work order containing Terms and Conditions, NOT WASTED’s fulfilment of its obligations under this Agreement does not constitute acceptance of the Terms and Conditions of that purchase or work order.
12.7. 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.
12.8. This Agreement may only be varied in writing by a document signed by a duly authorised officer of each party.
12.9. 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.
12.10. 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.
12.11. 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.
12.12. 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. DISPUTE RESOLUTION
13.1. 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).
13.2. 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.
13.3. 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).
13.4. The parties must pay the mediator’s fees in equal shares. Each party must pay its own costs of the mediation.
13.5. If the dispute is not resolved within 28 days after the appointment of the mediator, the parties shall be free to commence court proceedings.
13.6. This clause does not prevent any party from obtaining any injunctive, interlocutory or declarative relief from a court, which may be urgently required.
14.1. 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 NOT WASTED 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 NOT WASTED; Accordingly, NOT WASTED 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. NOT WASTED 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 NOT WASTED of fees for the use of this service, and terminates where NOT WASTED services are discontinued, withdrawn or upon expiry of the agreement.
c. NOT WASTED proprietary software; notwithstanding anything to the contrary contained herein, NOT WASTED retains all rights and interest in software products provided hereunder. NOT WASTED 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 NOT WASTED, on the hardware products provided hereunder and to use the related documentation solely for Customer's own internal business purposes.
14.2. 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.
14.3. Customer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products owned by or licensed to NOT WASTED.
14.4. This license terminates where NOT WASTED services are discontinued, withdrawn or upon expiry of the agreement. NOT WASTED will also be entitled to terminate this license of the Customer fails to comply with any term or condition herein.
14.5. The Customer agrees, upon termination of this license, immediately to return to NOT WASTED all software products and related documentation owned by or licensed to NOT WASTED and all copies and portions thereof.
15. INTELLECTUAL PROPERTY
15.1. Where NOT WASTED 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 NOT WASTED, and otherwise in accordance with any agreement between NOT WASTED and the Customer specific to the use of that particular technology.
15.2. 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 NOT WASTED or a third party have been met.
15.3. 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 NOT WASTED is vested and shall vest in NOT WASTED 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 NOT WASTED.
16. ASSIGNMENT AND CHANGES OF NAME
16.1. 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 NOT WASTED, which will not be unreasonably withheld.
16.2. The Customer will formally notify NOT WASTED of any change of name prior to the change of name coming into effect.
16.3. NOT WASTED may at law assign its rights under this Agreement to any party at any time.
17. GROUPING AND SET OFF
17.1. 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.
18. GOVERNING LAW
18.1. 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.