Terms of Service

Introduction
1. These terms, along with our Privacy Policy (which can be viewed at our website), apply to all Solutions that we have or will provide to you. In the case of conflict between these terms and the provisions in any other agreements or documents, these terms shall apply and will supersede all others.
Solution
1. A solution is the combination of one or more of the following: Application, database, domain name, hosting, integration, software as a service, SSL certificates, website, project services including analysis, design, estimating, review meetings, administration, developing, Quality Assurance/Testing, Project Management and any other similar service offered by us as set out in the documentation.
2. We will provide the Solution you have selected in the proposal, and you will be billed the various fees.
3. We will endeavour to:
  1. provide the Solution with skill and care in accordance with any specifications as set out in the documentation
  2. ensure the Solution is available for your use from an agreed commencement date. You acknowledge that we may need to wait for certain services to be provisioned by other suppliers. We will not be liable to you for any delay in the commencement of the Services if that delay is caused by you or any third party
  3. provide you with a consistent and reliable Solution
  4. as far is reasonably practicable, ensure there are no interruptions to your solution.
4. We use professional data centres and hosting facilities, so we are dependent on services provided by our suppliers and cannot guarantee uninterrupted service. When access to the Solution is disrupted or there is a fault, we will do our best to reinstate the Solution as soon as possible.
Process
1. The project specification and requirements are based upon information that you provide to us. Therefore, you must make sure that you fully brief us on all matters.
2. When the documentation is agreed and accepted by you, it is a complete statement of your requirements as at the date of acceptance. If your requirements change following the acceptance of the documentation, we will then follow the change control process outlined below.
3. The scope of the Solution and the priorities of the requirements may evolve as the project progresses, challenges are encountered and improvements are identified. This is a natural and expected occurrence in any project and is seldom due to the fault of any person. We will therefore work in a flexible and collaborative manner with you during the project so that you can participate and provide your feedback. If the scope changes, it may be necessary to vary the specification, the estimated budget and project timeline, all of which will be communicated your nominated project representatives
4. It is not possible to develop software without any bugs. We try to mitigate this having 2 types of testing of the solution. Native Software Internal testing is Quality Assurance/testing that is performed by our own team and User Acceptance Testing (UAT) is testing by the client team that will be using the Solution in real time. We reserve a percentage of the Estimated Budget for initial testing and bug fixing. However, this will be recalculated if there is a change in scope. Bugs may also continue to surface from time-to-time following completion of the Solution and our Support Team will fix them respectively.
5. Products and services provided by third party providers will have their own terms and conditions. You are responsible for reading and complying with these.
Warranty
1. We warrant that we will provide all our Solutions with the care and skill that can be expected from a competent provider.
2. Our Solutions are provided with a warranty of 90 days from the Go-Live date. During this time, it will conform to the agreed specification. If this warranty is breached within the Solution Warranty Period we will, at our cost, modify the solution to ensure it conforms with the agreed specification.
3. The warranty does not apply when:
  1. the issue is caused directly or indirectly by your negligence, misuse, or any alteration and/or modification made by you
  2. the issue is related to any open-source or external platform, framework, or library (for example WordPress, Drupal, Magento etc) used or incorporated in the Solution including any open source or external plugins
  3. if you move the hosting of the Solution to another hosting provider at any time.
  4. you wish to add an additional capability that wasn’t within the originally agreed specification
4. We do not warrant that any Solution or Customisation will:
  1. be completely free of defect or error (commonly referred to as ‘bugs’). However, we will endeavor to resolve any defect in a timely way at our cost during the warranty period or at your cost following the warranty period.
  2. be completely secure. While we comply with industry standards, security threats are constantly evolving and may necessitate changes, at your cost, to the Solution.
  3. work on all devices, screen resolutions, internet browsers and operating systems. It is important to clearly communicate, before the project begins, the list of required supported devices.
Your Responsibilities
1. It is your responsibility to:
  1. nominate key personnel that we can liaise with throughout the project lifecycle
  2. observe and comply with all relevant legislation and regulations when using our solution
  3. promptly provide all the information, assistance, and approvals that we may reasonably require so that we can fulfil our obligations to you under the agreed documentation in a timely and efficient manner
  4. maintain backup data necessary to replace any of your data that is lost, damaged, or corrupted from any cause
  5. obtain any consents and licenses required to incorporate third party materials contained within the Solution
  6. follow any instructions provided by us in respect of the solution.
2. You confirm that all material and other information or content supplied by you, or contained within the Solution:
  1. is complete and accurate and not likely to mislead, deceive or cause damage to the reputation of any person or company
  2. will not cause us to infringe upon any person's Intellectual Property, and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement
  3. is not offensive, harmful, upsetting, unlawful, or otherwise objectionable; this includes complying with the Film, Videos and Publications Classification Act 1993 and the Harmful Digital Communications Act 2015.
3. To mitigate against fraud and to protect sensitive credit card information, you agree that you will not store customer credit card details and will only process credit card transactions using systems or providers that are PCI DSS compliant (visit http://www.pcisecuritystandards.org for more information) and your banking institution.
4. We may need to access and extract content from assets including your existing website or any third-party accounts and to incorporate it into any new Solution. You will give us the relevant access rights to these accounts.
5. By giving us these rights, you agree that:
  1. you are the legal owner of your existing accounts, contents and data
  2. you have full rights to these accounts
  3. you unequivocally authorise us to access them
  4. we can use, transfer or upload the contents of your existing accounts to your Solution
  5. you will indemnify us against any claims or proceedings (including all legal costs arising) that may be made against us by any third party for alleged unauthorised access to your existing accounts.
Intellectual Property
1. We use our code, interfaces, layouts and templates for more than one client. These multi-use assets remain property of Native Software.
2. You are granted a non-transferable license to use this IP in the manner anticipated in the documentation. However, unless we have expressly agreed otherwise in writing, no license is given for you to develop any products or software that will be sold by you or anyone else.
3. We will not be liable to you, or any third party, in any way whatsoever for any:
  1. loss, damage to or corruption of information or data from any cause
  2. breach of security except to the extent attributable to our gross negligence
  3. loss of profits or revenue
  4. incidental, indirect, special or consequential loss or damage
  5. change to your web page rankings. Search Engine Optimisation (SEO) is a process of applying techniques to improve the ranking or visibility of a web page in a search engine’s results. From time to time, a search engine may change the formulas it uses to determine rankings. We do not have any control over this. You agree that we will not be held responsible for any changes in your rankings because of changes made by a search engine.
Disputes
1. Both parties agree that it is beneficial for any issues, disputes or claims that may arise between us to be raised and dealt with promptly. Therefore, we agree that:
  1. a party with a claim against the other (Claimant) will provide written notice of the claim to the other party as soon as reasonably practicable
  2. a claim relating to a defective Solution must be notified no later than 90 days after the delivery of that Solution
  3. any other Claim must be notified no later than 90 days after the date on which the Claimant became aware of the claim
  4. a party shall have no liability to the other in respect of a claim not notified by the Claimant
  5. legal proceedings or other action arising out of a claim may not be brought by either party more than 12 months after the date of the act or omission giving rise to the Claim.
2. In any event, our maximum aggregate liability to you arising out of any claim for loss and/or damages will under no circumstances exceed an amount equal to the total charges paid by you under the relevant documentation in the six (6) month period immediately preceding the event giving rise to liability.
3. If you are not satisfied with the Solution, you may notify us in writing accordingly within 90 days of delivery of it. If you notify us and we agree the Solution does not meet the requirements of the relevant documentation, we may within a reasonable time at our discretion:
1. 1. rework the relevant Solution or engage a third party provider to do so
  2. provide a replacement Solution that in our reasonable opinion delivers an equivalent function or outcome for you
  3. refund the charges for the relevant defective Solution
  4. if we do not agree the Solution is defective, either party may thereafter (but subject to the time limitations) refer the matter to the dispute resolution process.
Pricing
1. Please note all costs shown are estimates only. Any additions to the agreed scope, will result in additional costs.
2. This is because the Estimated Budget is not final. Requirements may change or become more or less complex while completing the project. We therefore reserve the right to charge you for the actual hours of work performed at the hourly rates specified in the documentation.
3. Before doing so we will ask for your approval. This may affect the overall solution including the delivery date.
Payment Terms
1. Due Date Payment Terms (unless by other arrangement):
  1. subscription and user licences are invoiced on the first day of each month with payment due on the 20th of the same month
  2. software development and consultation payments are invoiced at the end of the month with payment due on the 20th of the following month
  3. Domain renewals and other costs are billed as they occur, and payment is expected by the end of the same month
  4. larger projects may span several months; therefore, you will be invoiced at the end of each month for work performed in that month
  5. you agree to pay the charges for the Solution as and when they fall due.
2. If you do not pay the charges on time we may, at our discretion do any of the following:
  1. suspend or restrict your use of the Solution
  2. terminate the relevant agreement
  3. refer your account to our debt collection agency
  4. charge you all collection costs incurred by us
  5. charge you default interest from the date when payment became due, until the actual date of payment of all amounts owing (including default interest), at a rate of five (5) percent per calendar month (which shall at our sole discretion compound monthly at such a rate)
  6. set-off any amounts due from you against any monies due from us or held in our account to your credit
  7. if we have agreed to allow you to pay the charges by instalments and you default on those when due then the whole of the charges shall become immediately due and payable.
3. The provision of the Solution is put ‘on hold’ when:
  1. you have failed to fulfil your obligations despite our request for you to do so
  2. you have requested us to cease providing the Solution or stop work on your project
  3. we have been unable, despite at least three (3) repeated attempts, to contact you at your last known email address or phone number
4. If the provision is put on hold and this continues for more than three (3) consecutive months since the last of our unsuccessful attempts to communicate with you
  1. you will be deemed to have abandoned the project for that Solution.
5. In the case of an abandoned project or an early termination the following shall apply:
  1. in addition to any amounts that you may already owe us, an early termination charge may be payable by you.
  2. you will not be entitled to a refund of any of the monies already paid by you
  3. we will be wholly discharged from any further obligations.
6. The early termination charges are payable because:
  1. when you authorise us to proceed with a Solution, you commit to purchasing and paying us for the Solution
  2. because of that commitment by you, we have scheduled and planned the implementation of that Solution and committed our time and resources to its delivery to the exclusion of other client projects
  3. even if we have only delivered a small portion of the Solution to you, costs are still incurred. For example: scoping your requirements requires time invested in meetings and workshops, research and analysis of your needs, potential project risks/issues and challenges, and documenting our recommendations.
Confidential Information
1. Each party will keep all information about the Solution confidential and will not use or disclose this information to a third party other than:
  1. with the prior written consent of the other party
  2. for the purposes of fulfilling our obligations to each other under the documentation
  3. as required by law and then only to the minimum extent required.
Suspension of Services
1. We may suspend the provision of the Solution to you:
  1. if you do not meet your responsibilities under the relevant documentation or these terms, provided we give you (7) seven days’ prior notice of such suspension
  2. if a third party provider supplying services to us suspends or interrupts its service to us and that suspension or interruption adversely affects our ability to provide the Solution to you
  3. in an emergency, where required by law or whenever we consider that it is necessary or reasonable to protect persons, systems or other property.
2. We may, without any prior notice to you, remove material from or block access to your Solution where we have received a notice of infringement under section 92C of the Copyright Act 1994 or any similar legislation in any other jurisdiction, or denial of access follows the requirements of the Harmful Digital Communications Act 2015. You agree that we shall have no liability to you in respect of any loss, cost or damage suffered by you because of such action. If there is a dispute between you and a third party regarding the Solution, you acknowledge that it is your responsibility to resolve such dispute with the third party and you agree to indemnify us against all claims, proceedings or actions.
Termination
1. Termination by you
  1. Subject to any minimum term associated with any Solution, you may otherwise terminate the Solution at any time after the expiry of such minimum term, by giving us one (1) month’s written notice of termination.
2. Termination by us
  1. We may terminate the Solution (whether included in a documentation or otherwise), at any time, by giving you at least three (3) month's written notice of termination.
  2. Upon termination of the Solution any amounts owing by you to us must be paid immediately and we will be regarded as being discharged from any further obligations for the Solution with effect from the date of termination.
3. Termination by you for breach
  1. You may terminate the Solution at any time if:
    1. we are placed in voluntary administration, receivership or liquidation
    2. we have breached a term of the documentation or these terms and failed to remedy such breach after being given written notice by you and allowing at least 30 days for us to remedy the breach then,
  2. Upon termination:
    1. we will immediately cease providing the Solution
    2. we will invoice you for work performed, and you will immediately pay without deduction the amount invoiced
    3. we shall be entitled to deduct any invoiced amount from any amount that is due from us to you or held in your account to your credit as may be sufficient to pay the invoiced amount including, any deposit and advance payment
    4. we will be wholly discharged from any further obligations under these terms.
4. Termination by us for breach
  1. We may terminate the Solution at any time if:
    1. you are placed in voluntary administration, receivership or liquidation
    2. in our reasonable opinion, you are using the Solution for any unlawful, abusive or fraudulent purpose
    3. you abuse, harass or threaten verbally or in writing any of our employees, contractors or directors
    4. you commit a material breach of the agreement, when the breach is not reasonably capable of being remedied
    5. you have breached a term of the documentation or these terms and failed to remedy such breach after being given written notice at your last known email address and allowing at least 30 days for you to remedy the breach then
  2. Upon termination
    1. we will immediately cease providing the Solution
    2. in addition to any amounts that you already owe us, you must pay the early termination charges.
5. Effect of Termination
  1. Termination of a Solution shall not relieve either party from any right, liability, or claim that has accrued under this agreement. The provisions of these terms will survive termination or cancellation.
Marketing
1. You agree that we may from time to time send you e-mails with articles and information about our organisation and products and services that we think may be of interest to you. You may elect not to receive such communications at any time by following the unsubscribe

process included with the communication or by contacting our support team on support@nativesoftware.co.nz.

Amendment of Terms
1. We may amend or replace these terms from time to time. The amended terms will then apply to the Solution. We will post the amended terms on our website and we will communicate these changes to you via email. If you object to the Amended Terms, you must notify us by emailing office@nativesoftware.co.nz. You will be taken to have accepted the Amended Terms if you continue to make use of the Solution and do not give us any notice to the contrary. If you are in any doubt as to the current terms of trade that apply to the Solution, please visit our website or contact our support team on support@nativesoftware.co.nz.
Disputes - Principles
1. The following principles apply to any dispute:
  1. each party shall use all reasonable efforts in good faith to resolve any dispute and to minimise the impact of any dispute.
2. The dispute shall be confidential between the parties and their respective legal advisors or to the extent a dispute is required to be disclosed by court order.
Notice of dispute
1. As soon as reasonably practicable, you must give us notice of any dispute. Prior to issuing a Dispute Notice and triggering the formal dispute resolution process in this clause, the parties will consult in good faith for a minimum of seven (7) days to see if they can resolve the matter themselves.
Internal dispute resolution
1. Following issue of a Dispute Notice, the parties will consult in good faith for a minimum of twenty-one days to see if they can resolve the matter giving rise to the dispute themselves, including at least one meeting between the parties’ nominated representatives within fourteen days of issue of the Dispute Notice.
Arbitration
1. If the parties fail to resolve the dispute within 21 days of issue of the Dispute Notice, either party may thereafter give notice to the other party requiring the dispute to be referred to and finally resolved by arbitration in accordance with the arbitration rules of the New Zealand Dispute Resolution Centre. The parties shall:
2. promptly each pay one-half of the preliminary costs of the arbitration as set out in the rules of the New Zealand Dispute Resolution Centre
3. acknowledge that the decision on the appointment of the arbitrator shall ultimately be made by the New Zealand Dispute Resolution Centre.

Miscellaneous
1. You agree that the documentation and these terms comprise the entire agreement between you and us in respect of the Solution and, unless expressly stated in the documentation, all prior agreements are superseded. By accepting the documentation, you also confirm and acknowledge that you have not been induced to purchase the Solution.
2. You agree that we are free to offer and provide Solutions, that are like the Solution provided to you, to other persons and companies.
3. If any of your contact details change, you agree to promptly provide us with your new contact details. We will send you notices and other communications to the last known contact details you have given to us.
4. You confirm that you are authorised to accept all documentation forming part of this agreement, that you are not insolvent and that this agreement creates binding and valid legal obligations to you.
5. We may decline your application for the Solution at our discretion and we do not have to disclose our credit criteria or the reasons for our decision.
6. Nothing in these terms shall be construed as creating a relationship or agent, partnership, joint ventures or employer and employee between us or any of our personnel.
7. These terms and any contract to which they apply shall be governed by the laws of New Zealand.

Terms of Service

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