Terms of Service

Terms of Service

A-Vision Software Development

1.Introduction

These Terms of service(Terms) apply to all products and services that we, A-Vision Limited (trading as A-Vision Software) (we, us, our), provide to you at any time.  These Terms supersede any previous agreement between us.  By accepting a proposal we have provided to you (Proposal), placing an order with us, accepting or agreeing to any terms of reference we have provided to you (Terms of Reference), or accessing or using any of our software or services:

I. you agree to these Terms; and

II. where you do any of those acts on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

2. Changes to these Terms

We may need to change these Terms. If amendments are made then you will be notified by email. Unless stated otherwise, any change takes effect from the date set out in the notice.  You are responsible for ensuring you are familiar with the latest Terms.  If you have concerns about the amendments then please contact a customer service representative. If you object to the amended terms you may terminate these Terms by giving us at least one month’s notice.  By continuing to use our services from the date on which the Terms are changed, you agree to be bound by the changed Terms.

3.  Our Services

If we are to provide you with our services, then you agree to the following:

I. We will agree with you in a Proposal all the services that are to be carried out.  Each Proposal forms part of, and is governed by, these Terms.

II. You agree to provide us with all of the resources and information required to do our job and in a timely manner. This means within 7 days of request. A breach in this clause may involve extra charges, lengthening of our/your project timeline, and/or suspension or termination of the services.

III. Our Proposals are based on information that you provide to us. Therefore, you must be sure that you are complete in providing us with all the information necessary to complete our project. If you require changes to be made to our original proposal, please see Clause 7 for more details.

IV. We will use reasonable efforts to provide our services in accordance with these Terms, our Proposal and any other Terms of Reference and exercising reasonable care, skill and diligence.

V. Our provision of our software and services to you is non-exclusive.  Nothing in these Terms prevents us from providing our software and services to any other person.

4.  Our Software

When accessing our software, you and your personnel must:

I. use the software solely for your internal business purposes, except as otherwise agreed by us;

II. not resell or make available the software to any third party, or otherwise commercially exploit the software, except as otherwise agreed by us;

III. not impersonate another person or misrepresent authorisation to act on behalf of others or us;

IV. correctly identify the sender of all electronic transmissions;

V. not attempt to undermine the security or integrity of the software or the IT solutions, systems and networks (including software and hardware) used to provide the software, including third party solutions, systems and networks (Underlying Systems);

VI. not use, or misuse, the software in any way which may impair the functionality of the software or Underlying Systems or impair the ability of any other user to use the software;

VII. not attempt to view, access or copy any material or data other than:

  • a. that which you are authorised to access; and
  • b. to the extent necessary for you to use the software in accordance with these Terms; and

VIII. neither use the software in a manner, nor transmit, input or store any data or content, that breaches any third party right (including intellectual property rights and privacy rights) or is incorrect, misleading, objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

5. Third Party Applications (APIs)

I. A Third Party includes but is not limited to the following; the use of any automatic credit card transaction process facility or payment gateway, accounting software, inventory management software, point of sale (POS) system, retail management system, customer relationship management (CRM) system, intranet, document management system or file storage system.

II. As part of our services we may integrate our software with Third Parties. If this is the case, we have no responsibility or liability for misuse of any information shared with the Third Party which has been shared with the Third Party upon your requester for the availability or performance of the Third Party features. You acknowledge that you have read the Third Party’s Terms of Use and Privacy Policies and you release us from all responsibility and liability for the actions of that Third Party(s).

  • I. Without limiting the previous clause, if a Third Party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you.  To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
  • II. We will only recommend well known and reputable Third Parties for things like servers and hosting services. Please see our Privacy Policy for more details.

6. Bugs and On-Going Development

I. Initial Testing & Bug Fixing

Testing and bug fixing is an integral and vital part of any customisation. The existence of bugs is a natural and normal occurrence within any software or software development process, and is not due to deficiencies or inefficiency in our systems or processes. It is not cost-effective to develop software without any bugs, or to detect and fix all bugs as part of the initial testing and bug fixing process. Some bugs will surface and be fixed during the initial testing and bug fixing process. Depending on the level of refinement that you may require and the amount of cost that you are prepared to incur, we recommend that you only fix those bugs that will critically impact on the performance of the customisation and are cost-effective to fix. We normally recommend as a rule of thumb to reserve 20% of the estimated budget for initial testing and bug fixing.  However, the amount reserved may not be adequate due to a number of reasons, for example, if, as a result of changes made to the project.  In that case, the estimated budget will be varied accordingly and extra time spent will be charged out per hour unless otherwise agreed.

II. Ongoing Development/Development Time bank.

Bugs may also continue to surface from time to time due to a variety of reasons. You may also want to make additional changes and additions to the system down the road as your business grows. We are committed to help you make these changes and provide each of our customers with a 1 hour time bank of which they can use toward bug fixes and system changes. This time bank renews each month. Any time spent beyond this will be charged out per hour and will be first confirmed in writing. This Time bank starts exactly one (1) year after launch date. For the first six months to a year there is an assumed large amount of bug fixing and tweaks to be made and this is included in the cost of the original system but always subject to the clause above.

7. Change Requests

I. Either party may at any time request in writing a change to the scope, timing and/or cost of providing the services (Change Request).

II. Following you submitting a Change Request, or if we submit a Change Request, we will confirm in writing the following matters (Change Proposal):

  • a. the amounts (if any) we propose to charge for investigating and/or implementing the Change Request;
  • b. any impact which the changes proposed in the Change Request would have on the services and software already being provided by us; and
  • c. any other information that we consider may be relevant to your consideration of the Change Request.

III. We are entitled to a reasonable variation to the scope, timing and/or cost of providing the services to the extent reasonably required to address the impact of any assumption or dependency set out in the Proposal or Terms of Reference not being met, any risk set out in the Proposal or Terms of Reference materialising, any failure by you to perform any of your obligations under these Terms, the Proposal or the Terms of Reference and/or any other event that is beyond our reasonable control.

IV. We are not obliged to agree to a Change Request or to provide a Change Proposal if implementation of the Change Request is not reasonably technically feasible or commercially viable, or requires the provision of services not normally provided by us.

V. On acceptance by you of the Change Request and Change Proposal, the relevant Proposal and/or Terms of Reference is varied from that date in accordance with that Change Request and Change Proposal.

8. Payment

I. Our software programs are web based. It is therefore important for you to understand that there will be a software licensing and hosting fee applicable on an annual (or monthly) basis from system launch date. You agree to pay this fee until the event in which you are no longer in need of our software services.

II. We have a variety of pricing structures including fixed price, contract, and subscription based payment terms. This structure will be outlined on a case to case basis within a Proposal.  You agree to pay any charges accrued from us within a timely manner (within 14 days) of invoice. This will include charges for any consulting, development, or administrative services.

III. If you do not pay charges on time, this may result in the suspension of services, termination of your Proposal, reference of your account to a debt collection agency,

IV. All charges are expressed in the currency specified in the Proposal and are exclusive of GST or VAT.

V. We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

VI. Except as otherwise set out in a Proposal, we may increase charges and/or rates by giving at least 30 days’ notice. If you do not wish to pay the increased charges and/or rates, you may terminate these Terms on no less than 10 days’ notice, provided the notice is received by us before the effective date of the increase. If you do not terminate these Terms in accordance with this clause, you are deemed to have accepted the increased charges and/or rates.

9. Intellectual Property

I. We must be able to use our own code, software interfaces, layouts, and templates for multiple clients. Therefore, with the exception of your intellectual property and data which is stored within our systems, we and our suppliers own:

  • a. all of the intellectual property within our software including the code, the user administration interfaces, measurement, administration and tracking tools;
  • b. all new intellectual property (if any) developed or created by us, our agents, employees and contractors in connection with the services including, but not limited to, elements (in source and object code) which form part of the generic functionality of the software or elements (in source and object code) which implement visual features or the layouts of the software; and
  • c. all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel that form part of the software,

(together, A–Vision Intellectual Property).

II. On the condition that you meet your payment obligations for the services we provide, you are granted a personal, non-exclusive, non-transferable license to use the A-Vision Intellectual Property for lawful purposes and for the term of and in the manner that is outlined in the Proposal or any other Terms of Reference.

III. The software may also contain open source software which is made available through a license that complies with Open Source Definition: http://opensource.org/osd (Open Source Software). We give you the Open Source Software on the terms set out in the license for the relevant Open Source Software. We also hereby disclaim any warranty or other assurance to you regarding the Open Source Software.

IV. You confirm that all intellectual property and materials uploaded to our software and software services  including; data, images, video, presentations, files, documents, animations, software and other information or content (Data and Content) is complete and accurate and not misleading; is not objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way,; and will not infringe upon any other person’s privacy or intellectual property rights including, but not limited to, any copyright or patent, registered design, or trademark.  You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data and Content infringes the rights of that third party (including intellectual property rights and privacy rights) or is incorrect, misleading, objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

V. Title to, and all intellectual property rights in, the Data and Content (as between the parties) remains your property.  You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data and Content for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.

VI. You must arrange all consents and approvals that are necessary for us to access the Data and Content to exercise our rights and perform our obligations under these Terms.

VII. You acknowledge and agree that to the extent Data and Content contains personal information, in collecting, holding and processing that information through our software and services, we are acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy law.  You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.

VIII. In order to reduce fraud and to protect sensitive credit card information, you agree that you will not store credit card details and will only process credit card transactions using systems that are PCI DSS compliant (visit http://www.pcisecuritystandards.org for more information) and that are authorised by us or your banking institution.

10. Warranties

I. Each party warrants that it has full power and authority to enter into, and perform its obligations, under these Terms.

II. To the maximum extent permitted by law, our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded.

III. You agree and represent that you are acquiring the services and rights to use software, and accepting these Terms, for the purpose of a business and that the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply.

11. Liability

I. We will not be held liable for any loss or damaged property, breach in security, or loss of profit, revenue, savings, business, use, data (including Data and Content), and/or goodwill, or any incidental, indirect, special or consequential loss or damage under or in connection with these Terms or our software or services.

II. In any event our maximum aggregate liability arising out of any claims for loss or damages to you or any third party will not exceed the total amount paid for in the 6 months immediately preceding the first event giving rise to liability.

III. The limitations and exclusions of liability within this clause apply whether the claim is in contract, tort (including negligence), breach of statutory duty or otherwise.

IV. Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.

V. Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or our software or services.

VI. If you are not satisfied with our services, then the sole way to remedy this is to terminate these Terms.  See clause 12.

12. Termination and Suspension

I. Termination by you of software or hosting services will be subject to the minimum terms associated with the software and hosting services but you may otherwise terminate these Terms at any time by giving us at least 1 months’ notice.

II. We may terminate consulting, software development or hosting services if:

  • a. You have neglected to make a payment for an invoice within 14 days and, after three attempts to contact you, you have not resolved the non-payment to our satisfaction. This may also lead to debt collection and related charges.
  • b. You breach any other material provision of these Terms and the breach is not remedied within 10 days of the receipt of a notice from us requiring you to remedy the breach, or the breach is not capable of being remedied.
  • c. You become insolvent, liquidated or bankrupt, have an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, become subject to any form of insolvency action or external administration, or cease to continue business for any reason.

III. No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any fees that you have already paid.

IV. Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.

V. On termination of these Terms, you must pay all fees for the provision of our software and services prior to that termination.

VI. If you terminate our development services early for convenience, we may at our discretion charge an early termination fee. This is due to the fact that when you confirm a Proposal or Terms of Reference you commit to purchasing from us the body of work described in the Proposal or Terms of Reference, and in reliance on that commitment we will have scheduled and planned for implementation, the upfront costs of design, consulting and pre-development. This early termination fee will, unless otherwise agreed, be 20% of the project price up until 70% of the project has been paid. If terminated after 80% of the project has been paid, the remainder of the project costs will still be charged as an early termination fee.

VII. Except to the extent that a party has ongoing rights to use the other party’s confidential information, at the other party’s request following termination of these Terms, a party must promptly return to the other party or destroy all confidential information of the other party that is in the first party’s possession or control.

VIII. Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of our software and services and/or delete, edit or remove the relevant Data and Content if we consider that you or any of your personnel have:

  • a. undermined, or attempted to undermine, the security or integrity of the software or any Underlying Systems;
  • b. used, or attempted to use, the software or services:
    • i. for improper purposes; or
    • ii. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
  • c. transmitted, inputted or stored any data or content, that breaches any third party right (including intellectual property rights and privacy rights) or is incorrect, misleading, objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way; or

IX. otherwise materially breached these Terms.

13. Confidentiality

I. Each party must, unless it has the prior written consent of the other party:

  • a. keep confidential at all times the confidential information of the other party;
  • b. effect and maintain adequate security measures to safeguard the other party’s confidential information from unauthorised access or use; and
  • c. disclose the other party’s confidential information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, this clause 13.

II. The obligation of confidentiality in the preceding clause does not apply to any disclosure or use of confidential information:

  • a. for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
  • b. required by law (including under the rules of any stock exchange);
  • c. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
  • d. which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
  • e. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 13.

III. In these Terms, confidential information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, these Terms.  Our confidential information includes the A-Vision Intellectual Property.  Your confidential information includes the Data and Content.

14. Privacy

Your privacy is important to us. Please see our privacy policy at https://www.a-vision.co.nz/about-us/privacy/ for detailed information about how we collect, store and use data which you provide us.

15. Miscellaneous

I. Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by an event that is beyond its reasonable control, excluding a lack of funds for any reason.

II. No person other than you and us has any right to a benefit under, or to enforce, these Terms.

III. For us to waive a right under these Terms, that waiver must be in writing and signed by us.

IV. We are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.

V. These Terms (including the Proposals and any Terms of Reference) set out everything agreed by the parties relating to our software and services, and supersede and cancel anything discussed, exchanged or agreed previously.  The parties have not relied on any representation, warranty or agreement relating to our software and services that is not expressly set out in these Terms.  Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.

VI. Before taking any Court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.  Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.  This clause does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

VII. Any variation to these Terms must be in writing and signed by both parties.

VIII. If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.  If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

IX. You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld.  You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.

X. If your contact details change, you agree to provide us with your new details in a prompt, timely manner.

XI. These Terms and any Proposal to which they apply (including, but not limited to, the Terms of Reference) shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand.