First Software (FS)

  1. Quotes and Acceptance

    1. Any goods and services FS provides to the Client (“Solution”) by Quote or otherwise, whether now or in the future, shall be subject to these Terms as amended by FS from time to time.

    2. For the purposes of these Terms “Quote” shall mean any estimate in writing by FS for goods and/or services. The Client acknowledges that fixed price Quotes can only be given by the Managing Director, Sales & Marketing Manager, and Development Manager in writing.

    3. All Quotes or other representations of price, other than fixed price Quotes, are estimates only and if FS provides goods and services to the Client other than pursuant to a fixed price Quote then FS are entitled to charge its usual rates as determined by FS from time to time (“Usual Rates”).

    4. Where the Quote is not accepted in its totality or is not accepted within 30 days then FS reserves the right withdraw the Quote, requote or to the extent that goods or services may have already been provided by FS charge FS’ Usual Rates.

    5. Any increase in prices after the date of Quote may be on-charged to the Client.

  2. Pricing and Payment Terms

    1. Payment of all N2 ERP implementation costs and Ecommerce website implementation costs will become payable in advance in even monthly instalments over the total estimated implementation period contained in any Quote, unless otherwise stated, provided by FS to you or any reasonable installation period we advise from time to time. The first monthly instalment will be required prior to any work by FS being started and within 3 working days of acceptance of a Quote or other instruction to proceed with all subsequent payments being payable on the monthly anniversary of the date of the first payment or the date on which that first payment became due.

    2. Payment of N2 ERP licence costs are payable monthly in advance on the date that the Client is given effective access of N2 (“Payment Date”) with the first payment due on the Payment Date. For the avoidance of doubt if there is any dispute about the Payment Date then FS’ shall determine this in its sole discretion.

    3. Payment for any Solution provided by FS to you after the Go Live Date will be charged at FS’ Usual Rates and will be required to be paid on the 20th of the month following the invoice date, unless otherwise stated in these Terms.

    4. Pricing is based on services being provided from Auckland. All travel related expenses for services FS provides out of Auckland will be charged to the Client, including the travel time incurred by FS’ staff or contractors at their ordinary hourly rates.

    5. N2 ERP Licence and Hosting may be reasonably adjusted, without notice, by FS including for inflation based on the Consumer Price Index.

    6. Prices quoted are in New Zealand dollars and are GST exclusive, unless otherwise stated.

    7. By contacting support, you authorise FS up to 30 minutes of chargeable time to investigate your request. If found to be a bug in the core n2 ERP platform then no charge will be made.

  3. Default

    1. Without limitation to any other remedy available to FS if FS does not receive payment when due it may suspend all work on the Solution until payment is received in full for all monies owing to that date including, but not limited to, the right to suspend the Go Live Date.

    2. You will pay interest of 2% per month on any amount not paid when due until payment is received in full by FS.

    3. If payment is overdue for more than 30 days then without limitation to any right or remedy available to FS at law or under these terms FS may:

      1. suspend, remove, cancel, or delete without notice to the Client, the Solution or any part of the Solution; and/or

      2. terminate any agreement between FS and the Client; and/or

      3. provide the Client’s particulars and the particulars of the unpaid debt to any credit reporting agency to have the default in payment listed.

    4. All costs and disbursements incurred by FS in recovering payment of any overdue account or in enforcing FS’ rights under these Terms including, without limitation, legal costs on a solicitor and client basis are payable by the Client on demand.

  4. Warranties, Acknowledgements and User Testing

    1. The Client is responsible for assessing the suitability of the Solution to meet the Client’s requirements.

    2. The Client warrants that all information provided to FS is true and correct with no material omissions and the Client will not use or alter the Solution or any part of it for a purpose or process other than intended at the commencement of work by FS on the Solution.

    3. FS gives no warranties of any description for the Solution other than under a fixed price Quote.

    4. The Client agrees to comply with any terms of use for the Solution notified to the Client from time to time.

    5. Where work is completed under a fixed price Quote the only warranty offered by FS in respect of the Solution is a 60 day bug warranty whereby FS agrees to fix all bugs at their cost identified to them within 60 days of the Go Live Date. Such warranty shall not apply to the extent that the Client are otherwise in breach of these Terms particularly where the Client’s breach has caused any bug.

    6. FS may present to the Client from time to time a User Acceptance Testing Form (“UAT”). If the Client signs the UAT or does not sign it without having provided notice of any bugs to FS during the 60 day bug warranty period and in any event no later than the date FS resolves those bugs (referred to in these Terms as the “Go Live Date”) then the Client acknowledges that that the Solution provided is fit for purpose and acceptable to the Client in all respects and further that FS shall have no further liability whatsoever in respect of the Solution. If further work is required in respect of the Solution after the Go Live Date then FS may charge its Usual Rates.

    7. The Client acknowledges that due to the nature of software development they do acknowledge that bugs are part of the software and website development process.

    8. The Client warrants that you will use the Solution in accordance with applicable laws.

    9. FS and the Client agree the Consumer Guarantees Act 1993 (“CGA”) will not apply provided that the requirements of section 43(2) of the CGA are satisfied. To the extent that it is lawful the parties agree that all goods and services supplied are supplied and acquired in trade and the parties to these Terms are in trade.

    10. Documentation and user help guides are the responsibility of the Client, unless stated otherwise in this document.

  5. Hosting, Data Backups

    1. FS uses third party enterprise grade hosting providers for N2 ERP Cloud version and Ecommerce Websites. FS is not responsible or liable for issues or downtime caused by its hosting providers.

    2. If FS or its third party enterprise grade hosting providers are the target of any DDoS attack or other security concern then FS may without notice take such action as it determines appropriate and shall have no liability in respect of such action taken.

    3. Websites developed by FS are required to be hosted by FS, unless otherwise agreed in writing.

    4. Data backups for N2 ERP Cloud Hosted version is the responsibility of FS, where hosted on FS hosting platform. FS is not liable for any failed backup.

    5. Data backups for N2 ERP Client Hosted version is the responsibility of the client.

    6. If N2 ERP is hosted by the client, the client may only install the software on one operational server owned and/or operated by or on behalf of the Client and on one test server owned and/or operated by or on behalf of the Client and on one standby server owned and/or operated by or on behalf of the Client.

    7. If N2 ERP is hosted by the Client, the Client may make copies of the software in machine readable object code form for non-productive backup or archival purposes only.

    8. If N2 ERP is hosted by the Client, the Client must provide external access to their N2 ERP Server for FS at all times.

  6. Ownership

    1. Subject to these Terms, FS grants to the Client and the Client accepts a personal, non-exclusive, non-transferable licence (without the right to sublicense) to use the Solution, including but not limited to, N2 ERP and Ecommerce Websites, for its own internal business purposes until termination or expiry.

    2. Except for the licence rights expressly granted in clause 5.1 and as otherwise expressly provided in these Terms, FS shall retain all right, title and interest in the Solution, including but not limited to, N2 ERP and Ecommerce Websites but excluding any goods fully paid for and the Website Front End Design. For the purposes of this clause the Website Front End Design means each HTML file that determines the layout or design of a website

    3. The client does not have the right to employ FS staff directly or develop software developed by FS, including but not limited to, N2 ERP and Ecommerce Websites.

  7. Termination

    1. N2 ERP Licence and Hosting is for a minimum 12 months and thereafter may only be terminated, by either party, on 90 days written notice at which the Software must be returned, if hosted by the Client.

    2. A Single User Licence may be granted post termination for enquiry use only. Single User Licences are $1000 per month, plus GST or such other cost as we determine from time to time.

    3. FS shall only be required to hold any data hosted by it for 90 days post termination at which point FS shall be able to destroy such data and FS shall have no liability in respect of the same.

  8. Limitation of Liability

    1. The Client hereby releases and indemnifies FS and agrees to forever keep FS indemnified from any and all cost, damage, liability, expense or loss, including indirect, consequential and special losses that we may incur in relation to the Client or any third party, relating to the Solution.

    2. To the extent permitted by law, and without limitation to clause 8.1 our liability to the Client in respect of any cost, damage, liability, expense or loss (including those caused or contributed to by FS’ negligence or breach of any condition or warranty) is limited to, the value of our last invoice or the repair of the Solution whichever is the lesser.

Last update: 13/01/2020