Terms Of Trade

1. DEFINITIONS

1.1 Digital Revolution Limited” shall mean Digital Revolution, BDMA Revolution, Tracman or any agents or employees thereof.

1.2 “Client” shall mean the Client, any person acting on behalf of and with the authority of the Client, or any person purchasing services from Digital Revolution Limited.

1.3 “Services” shall mean all services, software, products and advice provided by Digital Revolution Limited to the Client and shall include without limitation software, support services’ all charges for time and attendances, or any fee or charge associated with the supply of Services by Digital Revolution Limited to the Client.

1.4 “Price” shall mean the cost of the Software and Services as agreed between and the Client and Digital Revolution Limited includes all disbursements e.g. charges Digital Revolution Limited pay to others on the Client’s behalf subject to clause 4&5 of this Agreement

2. ACCEPTANCE
2.1 Any instructions received by Digital Revolution Limited from the Client for the supply of Products, Software and Services shall constitute a binding Agreement and acceptance of the terms and conditions contained herein.

3. SOFTWARE LICENSE

3.1 This agreement only grants you a “License to Use” the software for it’s intended purpose.

3.2 You may not resell, loan, copy or otherwise transfer the software to any other entity without the express written authority of Digital Revolution Limited. That includes use or copy by a related party Limited Liability company.

3.3 Any infringement based on 3.2 above, may result in termination of the license by Digital Revolution Limited without prejudice to any other rights Digital Revolution Limited may have under this agreement.

4. SOFTWARE CUSTOMISATION

4.1 Digital Revolution Limited are continually improving the performance of Tracman software. All license holders of our software automatically have access to update versions free of charge.

4.2 Where a client employs a modified / customized version of Tracman, at whatever level and an update causes functionality issues due to their modifications, they may be liable for the cost of further customisation to enable Tracman to work properly. The client is not obliged to install any update to the software, however should the client require assistance to reset to a previous version, this may incur a labour charge.

5. COLLECTION AND USE OF INFORMATION

5.1 The Client authorises Digital Revolution Limited to collect, retain and use any information about the Client, for the purpose of assessing the Client’s credit worthiness, enforcing any rights under this agreement, or marketing any Services provided by Digital Revolution Limited to any other party.

5.2 Where the Client is a natural person the authorities under clauses 5.1 are authorities or consents for the purposes of the Privacy Act 1993.

6. PRICE

6.1 Where no price is stated in writing or agreed to orally, the Services and/or software shall be deemed to be supplied at the current price as such Services and/or products are normally supplied by Digital Revolution Limited at the time of the agreement.

6.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Services and/or software that is beyond the control of Digital Revolution Limited between the date of the Agreement and supply of the Software, Services and/or products.

6.3 Where a client chooses an option of a staggered setup payment plan, and then partway through the period chooses to discontinue services, they are still obliged to settle the balance of the setup fee agreed in the first instance.

6.4 Under termination as in clauses 6.1-6.3 above, Digital Revolution Limited will not be obliged to refund any fees paid to date.

7. PAYMENT

7.1 Payment for Services and/or software shall be made in full by credit card upon the date of the invoice (“the due date”).

7.2 Purchase of License. The amount agreed as the license fee is payable by credit card on sign up.

7.3 Sums due for the ‘per document supplement’ fee will be charged on the original credit card and invoiced on a recurring invoice basis, unless the client opts for a higher subscription level which does not incur a per document supplement.

7.4 On failure of payment method processing, client will be forwarded communications requests to rectify. Failure to do so for longer than 15 days may result in the use of the software being suspended. This process does not mitigate the client’s legal obligation under the terms of this agreement.

7.5 Any costs incurred for customisation, under our standard terms of service, will be invoiced separately and due for payment within 7 days.

7.6 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.

7.7 Any expenses, disbursements and legal costs incurred by Digital Revolution Limited in the enforcement of any rights contained in this Agreement shall be paid by the Client, including any reasonable solicitor’s fees or debt collection agency fees.

7.8 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is settled in full.

8. QUOTATION

8.1 Where a quotation is given by Digital Revolution Limited for Software or Services:

8.1.1 Unless otherwise agreed the quotation shall be valid for ninety (90) days from the date of issue; and

8.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;

8.1.3 Digital Revolution Limited reserves the right to alter the quotation because of circumstances beyond its control.

8.2 Where Services are required in addition to the quotation the Client agrees to pay for the additional cost of such Services.

8.3 All products and services shall be quoted NZ Dollars.

9. AGENCY

9.1 The Client authorises Digital Revolution Limited to contract either as principal or agent for the provision of software and Services that are the matter of this Agreement.

9.2 Where Digital Revolution Limited enters into a agreement of the type referred to in clause 7.1 it shall be read with and form part of this agreement and the Client agrees to pay any amounts due under that agreement.

9.3 Digital Revolution shall be entitled to subcontract the whole or part of any services.

9.4 These terms shall apply to any subcontractor, employee or agent of
Digital Revolution Limited as if Digital Revolution are, were or had supplied the services

10. RETENTION OF TITLE

10.1 Where the Client has not paid for any Services or software in its possession, such title shall remain with Digital Revolution Limited and:

10.1.1 The Services and product shall be held by the Client as bailee; and

10.1.2 Title to the Services and software shall always remain with Digital Revolution Limited. The client has no title, but has a license to use. (clause 3)

11. DISPUTES
11.1 No claim relating to Products, Software or Services will be considered unless made within ten (10) days from receipt of invoice.

12. LIABILITY

12.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Digital Revolution Limited which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Digital Revolution Limited, Digital Revolution Limited’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.

12.2 Digital Revolution Limited shall not be liable for:

Any loss or damage of any kind, arising from the supply of software or Services by Digital Revolution Limited to the Client, whatsoever including consequential loss whether suffered or incurred by the Client or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from software or services provided by Digital Revolution Limited to the Client; and

12.3 The Client shall indemnify Digital Revolution Limited against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Digital Revolution Limited or otherwise, brought by any person in connection with any matter, act, omission, or error by Digital Revolution Limited its agents or employees in connection with the Services.

12.4 If, contrary to the disclaimer of liability contained in these terms and conditions of trade, Digital Revolution Limited is deemed to be liable to the Client, following and arising from the supply of Services by it to the Client, then it is agreed between Digital Revolution Limited and the Client that such liability is limited in its aggregate to $500.00.

13. WARRANTY
Any written warranty that Digital Revolution Limited provide to the Client will also form part of these terms and conditions of trade.

14. CONSUMER GUARANTEES ACT
The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Client acquires Services from Digital Revolution Limited for the purposes of a business in terms of section 2 and 43 of that Act.

15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
If the Client is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Digital Revolution Limited agreeing to supply software and Services and grant credit to the Client at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Digital Revolution Limited the payment of any and all monies now or hereafter owed by the Client to Digital Revolution Limited and indemnify Digital Revolution Limited against non-payment by the Client. Any personal liability of a signatory hereto shall not exclude the Client in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Client shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.

16. MISCELLANEOUS

16.1 Digital Revolution Limited shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.

16.2 Failure by Digital Revolution Limited to enforce any of the terms and conditions contained in this agreement shall not be deemed to be a waiver of any of the rights or obligations Digital Revolution Limited has under this agreement.

16.3 If any provision of this agreement shall be invalid, void, illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.4 Data is handled on a ‘pass through’ basis. We do not store data longer than 90 days, do not shre data and take practical measures to ensure data is secure

17. INTELLECTUAL PROPERTY

17.1 At all times of use or review, the Intellectual Property remains with Digital Revolution Limited.

17.2 Your use of this software confirms you are fully aware you have a ‘license to use’ only.

17.3 You may not copy, except as part of this agreement, sell, or release to a third party.

18. JURISDICTION
The jurisdiction for any legal matter in relation to Digital Revolution Limited shall be the Courts of New Zealand.