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TERMS & CONDITIONS 

V1.6.1

 

All equipment provided  is regarded as a Rental unless a Sales & Purchase agreement has been provided and signed by the Developer and Customer.

 

Clauses relating to Rental include 1 - 15

Clauses relating to Purchase include 1 - 9 & 16 - 21

 

These terms may be updated from time to time in the Developer’s sole discretion.

 

 

  1. DEFINITIONS AND INTERPRETATION

 

  1. Definitions: In this agreement relating to both Rental and Purchase:

 

Business Day means a day on which banks are open for business, excluding a Saturday, Sunday or public holidays in Wellington or New Zealand.

 

Default Interest means interest that accrues in accordance with clause 12 or 19

 

Default Rate means fifteen per cent per annum (15%).

 

Documentation means the operating manuals, training materials and associated documentation as will reasonably enable the Customer to effectively use the Equipment.

 

Intellectual Property Rights means all industrial and intellectual property rights (whether protectable by statute, at common law or in equity), in and to the Equipment as may exist anywhere in the world and whether or not registered or registrable, including, but not limited to, patent rights, trademarks, copyright and design rights.

 

Developer means Point Zero Limited or HoloSpace Pty Limited

 

Customer means the individual or company that has signed a Quote with the Developer

 

Installation Services means the services set out in, and which comply with, clause 2.2.

 

Equipment means any hardware/physical items provided by the Developer (outlined in a quote provided)

 

  1. Additional Definitions: In this agreement relating to “Equipment Rental Section”:

 

Lease means the lease of the Equipment, on the terms set out in this agreement.

 

Rental Fee / Moval / Setup fee: means the fees payable by Customer to the Developer as specified, for each day on which the Customer has possession of the Equipment (whether during the Term or not).

 

  1. Additional Definitions: In this agreement relating to “Equipment Purchase Section”:

 

Completion means completion of the sale and purchase of the Products as contemplated under this agreement.

 

Completion Date means the delivery date specified in the quote or email agreed to by the Developer.

 

Products means any the physical equipment and or software provided by the Developer to the Client

 

Purchase Price means agreed sale price plus GST.

 

Warranty Period means the period from the date of installation/delivery of the Products until the first anniversary of that date.

 

Start Date: the date that has been agreed either in:

 

  1. signed in a quote provided by the Developer
  2. agreed in writing

 

 

  1. Interpretation: In this agreement, unless the context otherwise requires:

 

  1. words importing the singular include the plural and vice versa;
  2. if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

 

  1. DELIVERY AND INSTALLATION

 

  1. Delivery: Upon Completion, the Developer will deliver the Products to the premises of the Customer or chosen location.

 

  1. Installation Services: If the Developer agrees to provide, and the Customer agrees to receive, the Installation Services. The Installation Services include:

 

  1. installation and configuration of the Products in good working order at the Customers nominated premises; and
  2. training of the Customer in the operation, calibration and maintenance of the Products.

 

  1. Preparation of Installation Location: the Customer shall, at its own expense, prepare its nominated premises for the installation of the Products prior to the date agreed between the parties on which the Installation Services are to be carried out (being, unless otherwise agreed, the Completion Date). The Developer will not be liable for any delay in installation due to the Customer’s non-compliance with this clause.

 

  1. Facilitation of Installation Services: To enable the installation of the Products, the Customer will provide the Developer with:

 

  1. unobstructed access to the Customer’s nominated premises and installation site;
  2. such assistance as may be reasonably required by the Developer
  3. reasonable working conditions and adequate work space;
  4. adequate telecommunications facilities as reasonably required by the Developer; and
  5. power supply requirements
  6. space, lighting and other technical requirements.

 

  1. AUTHORITY TO ENTER AGREEMENT

 

  1. Authority to enter agreement: Each of the parties represents and warrants that:

 

  1. authority: it has full power and authority to enter into and perform its obligations under this agreement;
  2. authorisations: it has taken all necessary action to authorise the execution, delivery and performance of this agreement in accordance with its terms;
  3. binding obligations: this agreement constitutes legal, valid and binding obligations and is enforceable in accordance with its terms; and
  4. transaction permitted: the execution, delivery and performance by it of this agreement does not and will not violate:
  1. to the best of its knowledge and belief, any law, regulation, authorisation, ruling, consent, judgment, order or decree of any governmental agency; or
  2. its constitution or other constituent documents.

 

  1. INTELLECTUAL PROPERTY

 

  1. Acknowledgement: The Customer acknowledges that:

 

  1. any and all Intellectual Property Rights used or embodied in or in connection with the Equipment (including the specifications) are and will remain the sole property of the Developer, and the Intellectual Property Rights in any modifications or additions arising out of, or related to, the Equipment will belong to the Developer;
  2. the Customer will have no claim to the Developer’s Intellectual Property Rights and no licence to use the Developer’s Intellectual Property Rights except as necessary to give effect to this agreement; and
  3. the Intellectual Property Rights, knowledge or know-how at any time transmitted orally, electronically or in writing by the Developer to the Customer will be considered absolutely confidential by the Customer and the Customer will not use them for any purpose nor sell, transfer or divulge them to anyone without the Developer’s prior written consent.

 

  1. Grant of licence: Subject to the Customer complying with its obligations under clauses 12 or 19 and 13 or 20, the Developer grants to the Customer a non-transferable, revocable licence to use the Intellectual Property Rights solely for the purposes of operating the Equipment during the Term as part of the Customer’s business. The Customer acknowledges the licence does not include the right to grant sub-licences to any person.

 

  1. Confidentiality: Each party must keep the confidential information of the other party confidential and must not use it other than for the provision of the Installation Services and maintenance services. This obligation does not apply to disclosures to the extent they are required by law, made to its legal advisors, or required to enable a party to perform its obligations. Each party must take all reasonable steps to ensure that its employees and agents and any subcontractors engaged for the purposes of this agreement do not disclose or misuse any confidential information. This clause will survive the termination of this agreement.

 

  1. Liability

 

  1. Limitation on liability: the Developer will not be liable:

 

  1. for loss due to the fact that the Customer has altered or misapplied the Equipment, or has subjected the Equipment to any unusual or non-recommended use, servicing or handling;
  2. for loss caused by any factors beyond the Developer’s control other than for loss directly caused by components of the Equipment;
  3. for any indirect loss or any consequential loss suffered or incurred by the Customer, or for any loss of income, business, profit or savings whether as a result of the Customer’s or any other person’s inability to complete a transaction or order or otherwise;
  4. where the loss sustained is due to non-compliance by the Customer with the terms of any Documentation, warranty or manufacturer's handbook provided to the Customer;
  5. where the Customer has not taken all reasonable steps to mitigate any loss, liability, or other damages it suffers as a result of a breach of this agreement by the Developer; or
  6. where the Customer has not informed the Developer of a breach of this agreement as soon as reasonably practicable after the Customer becomes aware of that breach.

 

  1. Maximum liability: The total liability of the Developer under or in relation to this agreement will not exceed an amount equal to the total hardware Product’s Rental/Purchase Fees paid under this agreement.

 

  1. HEALTH AND SAFETY

 

  1. Each party is required to comply with the provisions of the Health and Safety at Work Act 2015 by ensuring, so far as is reasonably practicable, the health and safety of their personnel.

 

  1. Each party will:

 

  1. consult, cooperate with, and coordinate activities with the other, so far as is reasonably practicable where they share a health and safety duty in relation to the same matter or person; and
  2. comply with all reasonable instructions from the other party in relation to health and safety matters affecting the other party’s personnel.

 

  1. FORCE MAJEURE

 

  1. Unavoidable delays: Neither party shall be liable for any delay in meeting, or failure to meet, its obligations under this agreement to the extent that such delay or failure is caused by any event outside its reasonable control (including, without limitation, any delay or failure caused by any act or omission of the other party) (Force Majeure Event). A Force Majeure Event may be caused by (but will not be limited to) the following circumstances:

 

  1. acts of God (including earthquake, fire and flood);
  2. acts of local, state or national Governments or public agencies;
  3. labour disputes, riots or strikes;
  4. utility or communication failures or delays; or
  5. any delay or failure caused by any act or omission of the other party.

 

  1. Obligations to notify: If a party is prevented from meeting its obligations under this agreement due to a Force Majeure Event, it must notify the other party of the nature and expected duration of the Force Majeure Event, consult with the other party as to the means (and use its reasonable endeavours) to minimise the effects of the Force Majeure Event, and resume performance of its obligations as soon as it is possible to do so.

 

  1. TERMINATION

 

  1. Default: Notwithstanding any other provision of this agreement, but subject to clause 7, either party may terminate the agreement immediately by notice in writing to the other if:

 

  1. the other party breaches any provision of this agreement and fails to remedy such breach within 10 Business Days from receipt of written notice from the party issuing the notice specifying such breach, or if the breach is a material breach incapable of being remedied; or
  2. the other party becomes insolvent, enters into a composition with its creditors, is declared bankrupt, goes into liquidation, or a receiver is, or has a receiver and manager, or statutory receiver, appointed in respect of it, or ceases to carry on business, or anything analogous to any of the foregoing occurs.

 

  1. The Developer’s right to terminate: In addition to any other rights under this agreement, the Developer may terminate this agreement immediately if:

 

  1. in the Developer’s reasonable opinion, the integrity of the Equipment is likely to be compromised or the Equipment is at risk;
  2. the Customer acts in a manner that the Developer considers is likely to damage the Developer’s reputation or the Equipment.

 

  1. Consequences of Termination: Upon the termination of this agreement, the Developer will be entitled to enter any premises where the Equipment is located and retake possession of the Equipment, on written notice to the Customer. Customer agrees to give the Developer reasonable access to enter such premises to remove the Equipment at the Developer’s risk and expense. The Developer will not be liable for any disruption to Customer’s business, or to make good any damage reasonably occasioned to such premises, during the removal.

 

  1. Obligations to survive: Termination of this agreement will not:

 

  1. affect the existence or exercise of any accrued rights, liabilities or remedies of either party whether arising under this agreement or at law, in equity or otherwise; or
  2. affect the obligations of the Customer under this agreement which are intended to survive termination (including, for the avoidance of doubt and without limitation, clauses 4.1, 4.3, 5 and 12 or 19 and the Customer’s obligation to pay any amount outstanding).

 

 

  1. GENERAL

 

  1. Amendment: No amendment to this agreement will be effective unless it is in writing and signed by each party.

 

  1. Entire agreement: This agreement is the entire agreement between the parties and supersedes all earlier conduct and prior agreements, representations and understandings between the parties in connection with its subject matter.

 

  1. Further Assurances: Each party must do all things and execute all further documents necessary to give full effect to this agreement.

 

  1. Governing law and jurisdiction: This agreement is governed by the laws of New Zealand. Each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of New Zealand.

 

  1. No assignment: The Customer may not assign any of its rights or obligations under this agreement without the prior written consent of the Developer. 

 

  1. No partnership/agency: Nothing contained in this agreement will be deemed or construed to constitute any party to be a partner, agent, or representative of any other party, or to create any trust or commercial partnership.

 

  1. No waiver: No exercise or failure to exercise or delay in exercising any right or remedy by any party will constitute a waiver by that party of that or any other right or remedy available to it.

 

  1. Termination: The clauses that by their nature are intended to survive the termination of this agreement survives the termination or expiry of this agreement for any reason whatsoever.

 

  1. Use Of Logo: The Company grants the Developer permission to use the Company's name and logo for their own promotional or marketing materials.

 

  1. No merger: The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.

 

  1. Fees: This equipment has been provided with the understanding that the Customer is not in the business of providing holographic displays and will not be a future hologram provider.

 

 

 

Equipment Rental Section

(Only applicable for rental)

 

INTRODUCTION

 

The Developer owns the Equipment. The Customer has agreed to lease the Equipment from the Developer on the terms set out in this agreement.

 

  1. LEASE AND TERM

 

  1. Agreement to lease: The Developer agrees to lease the Equipment to the Customer and the Customer agrees to lease the Equipment from the Developer on the terms of this agreement.

 

  1. Term of lease: The Lease commences on the Start Date and continues in effect until the End Date, unless this agreement is extended or terminated earlier (Term).

 

  1. Extension: The Lease may be extended by the Customer retaining possession of the Equipment beyond the End Date with the prior written consent of the Developer, in which case:

 

  1. the Customer must pay Rental Fees for each calendar day or part day during which the Customer retains possession of the Equipment; and
  2. the Customer must pay any incurred Rental Fees in full preceding the time of rental; and
  3. the Developer may terminate this agreement and repossess the Equipment at any time in accordance with clause 8.2.

 

  1. TITLE AND RISK

 

  1. Title: Legal and beneficial ownership of, and title to, the Equipment will remain at all times with the Developer.

 

  1. Risk: Risk of loss or damage to the Equipment will pass to the Customer from the time the Equipment leaves the Developers premises, to the time the Equipment is safely returned to the Developer’s premises.

 

  1. PAYMENTS

 

  1. Payment: The Customer must pay all Rental Fees due under this agreement as invoiced by the Developer at 30 days before the date of rental.

 

  1. Cost increases: At any time, and from time to time, the Developer may increase the amount of the unpaid Rental Fees by such amount necessary to recover any increase incurred by or arising from changes in statute, regulation, taxes or customs duties during the Term.

 

  1. Default: If the Customer does not pay any amount due under clause 12.1, then without prejudice to any other remedies available to the Developer:

 

  1. The Developer may, terminate the agreement and take possession of the Equipment;
  2. Default Interest will accrue on any unpaid amounts on a daily basis at the Default Rate (compounding monthly), from such time as the amount falls due until all overdue amounts have been paid by the Customer in full (including any Default Interest); and
  3. the Customer shall be responsible for all reasonable costs incurred by the Developer in recovering any amount outstanding and retaking possession of the Equipment, including any legal costs on a solicitor/client basis.

 

  1. No set-off or deduction: The Customer must make all payments due to the Developer under this agreement free of any deduction, withholding, or set-off.

 

  1. Tax: The Rental Fees do not include any GST, duties or other tax imposed. Any such GST, duty or tax will be added to and payable in addition to the Rental Fees.

 

  1. CUSTOMER OBLIGATIONS

 

  1. Care: The Customer will, at its own expense:

 

  1. keep the Equipment in good and clean order in accordance with this agreement and the reasonable requirements of the Developer as advised in writing from time to time;
  2. take reasonable care of the Equipment, including by:
  1. engaging only trained persons to operate the Equipment;
  2. complying with any written instructions given by the Developer as to the use of the Equipment;
  3. not attempting to repair or adjust the Equipment except as is necessary for the ordinary use of the Equipment;
  4. immediately notifying the Developer if the Customer becomes aware of any defect in, or maintenance required to, the Equipment, and protecting the Equipment from adverse conditions;

 

  1. only use the Equipment at the Customer Premises specified in the Developer’s given Quote;

 

  1. only use the Equipment in the manner for which it was designed and in accordance with the manufacturer’s specifications; and

 

  1. ensure that the Equipment is used in a safe manner which complies with all legal requirements relating to health and safety, and complies with any reasonable requirements of the Developer relating to health and safety or otherwise.

 

  1. Ownership: The Customer will:not hold itself out as agent, partner or joint venturer of the Developer;

 

  1. not copy or purport to sell any part of the Equipment to any third party without the Developer’s consent; and
  2. if and when requested by the Developer, at Customer’s own cost, do all things reasonably necessary to enable the Developer to obtain, maintain and perfect a security interest in respect of the Equipment;

 

  1. Insurance: The Customer will, at its own expense, take out and maintain during the Term, comprehensive insurance cover for the Equipment, and provide evidence of such insurance to the Developer when requested from time to time.

 

  1. Software: The Customer will:

 

  1. only allow software created or supplied by the Developer to be used in the Equipment;
  2. use reasonable endeavours to ensure that the Equipment remains free of bugs, viruses, malware, spyware, trojans and disabling code;
  3. promptly install any updates to software provided by the Developer in accordance with all reasonable instructions; and
  4. not disassemble, deconstruct, reverse engineer or otherwise replicate the Equipment or any part of the Equipment, or attempt to do any of these things, and shall procure that its employees and contractors do not do the same.

 

 

  1. WARRANTIES

 

  1. Warranties: Subject to the Customer complying with its obligations under clause 13, The Developer warrants that the Equipment (and any replacement Equipment and components):

 

  1. will conform to the specifications agreed to in the Developer’s Quote provided with the Customer;
  2. will, as at the commencement of the Term:

 

  1. perform at a level consistent with the Documentation.

 

  1. The equipment is a rental unit and may have material defects in materials and workmanship

 

  1. Manufacturers’ warranties: the Developer will use reasonable commercial endeavours to ensure that it procures any third party supplier of components in the Equipment to pass on the benefit of all manufacturers’ warranties relating to the Equipment, for the benefit of the Customer.

 

  1. Repairs: Subject to the Customer complying with its obligations under clause 13, in the event of a claim under the warranties in clause 14.1, the Developer will in the first instance repair any faulty Equipment where the claim is made in the Term and no exclusion applies.

 

  1. Support and Maintenance: If the parties agree, the Developer may provide routine support and maintenance services for a fee to be agreed separately.

 

  1. Consumer guarantees law limited: The Customer agrees that the Equipment is being leased by it for the purpose of a business and accordingly, the Consumer Guarantees Act 1993 does not apply.

 

 

  1. EXTENSION

 

  1. Extension: The Term of this agreement may be extended by:

 

  1. the Customer retaining the Equipment beyond the initial Term with the written consent of the Developer (in which case Customer will continue to pay Rental Fees); or
  2. the parties agreeing to extend the Term in writing.

 

  1. If the Customer retains the Equipment beyond the initial Term without consent. The Customer will be charged at $500.00 NZD per day per item until the date the equipment is returned to the Developer’s premises.

 

Equipment Purchase Section

(Only applicable for purchases)

 

INTRODUCTION

 

The Developer owns or will build the Products. The Developer has agreed to sell the Products to the Customer on the terms set out in this agreement

 

  1. SALE AND PURCHASE

 

  1. Sale and Purchase: the Developer agrees to sell the Products to the Customer and the Customer agrees to buy the Products from the Developer:

 

  1. for the Purchase Price specified in the quote provided by the Developer
  2. on the Completion Date; and
  3. otherwise on the terms of this agreement.

 

  1. COMPLETION

 

  1. Completion obligations: Upon Completion:

 

  1. subject to the Customers’ compliance with clause 19.1 and subject to clause 4, title to the Products will pass to the Customer free of any encumbrances;

 

  1. the Developer will deliver to the Customer:
  1. the Products and the Documentation; and
  2. a valid tax invoice for the Purchase Price; and
  1. the Customer will pay to the Developer the balance of the Purchase Price in accordance with clause 19.1.

 

  1. Simultaneous actions at Completion: In respect of Completion:

 

  1. the obligations of the parties under this agreement are interdependent; and
  2. all actions required to be performed are taken to have occurred simultaneously on the Completion Date.

 

  1. Title and Risk

 

  1. Title and Risk: Subject to Completion having occurred and subject clauses 4 and 18.2, title to and risk in the Products will be deemed to have passed from the Developer to the Customer on the Completion Date.

 

  1. The Customer’s obligations before payment: Where the Customer obtains possession or control of any of the Products prior to the Completion Date, the Customer will:

 

  1. maintain all such Products in accordance with their specifications; and
  2. be responsible for risk of loss or damage to any such Products whilst in its possession or control.

 

  1. PAYMENT OF PURCHASE PRICE

 

  1. Payment: the Customer must pay the Developer:

 

  1. the full amount agreed plus GST within 7 days of execution of this agreement; and

 

  1. Default: If the Customer does not pay any amount due under clause 19.1, then without prejudice to any other remedies available to the Developer:

 

  1. The Developer may, immediately terminate the agreement and take possession of the Products;
  2. Default Interest will accrue on the entire amount outstanding on a daily basis at the Default Rate (compounding monthly), from such time as the amount falls due until all overdue amounts have been paid by the Customer in full (including any Default Interest); and
  3. The Customer shall be responsible for all reasonable costs incurred by the Developer in recovering any amount outstanding, including any legal costs on a solicitor/client basis.

 

No set-off or deduction: the Customer must make all payments due to the Developer under this agreement free of any deduction, withholding, or set-off.

 

  1. CUSTOMER OBLIGATIONS

 

  1. On and from Completion, the Customer warrants that it will:

 

  1. only allow software created or supplied by the Developer to be used in the Products;
  2. not hold itself out as agent, partner or joint venturer of the Developer;
  3. not copy or on-sell the Products to any third party without the Developer’s consent
  4. use reasonable endeavours to ensure that the Products remain free of bugs, viruses, malware, spyware, trojans and disabling code;
  5. promptly install any updates to software provided by the Developer in accordance with all reasonable instructions;
  6. not disassemble, deconstruct, reverse engineer or otherwise replicate the Products or any part of the Products, or attempt to do any of these things, and shall procure that its employees and contractors do not do the same.

 

  1. PRODUCT WARRANTIES AND SUPPORT

 

  1. Warranties: Subject to the Customer complying with its obligations under clause 20, the Developer warrants that the Products (and any replacement Products and components):
  1. are free from any charges, encumbrances or other security interests;
  2. will conform to the specifications set out in the Schedule;
  3. will throughout the Warranty Period:

 

  1. be fit for the purpose for which they were acquired (as advised to the Developer prior to the date of this agreement) for the Warranty Period; and
  2. perform at a level consistent with the Documentation.

 

  1. Manufacturers’ warranties: the Developer will use reasonable commercial endeavours to ensure that it procures any third party supplier of components in the Products to pass on the benefit of all manufacturers’ warranties relating to the Products, for the benefit of the Customer.

 

  1. Repairs: Subject to the Customer complying with its obligations under clause 20, in the event of a claim under the warranties in clause 21.1, the Developer will in the first instance repair any faulty Products where the claim is made in the Warranty Period and no exclusion applies.

 

  1. Support and Maintenance: If the parties agree, the Developer may provide routine support and maintenance services for a fee to be agreed.

 

  1. Consumer guarantees law limited: the Customer agrees that the Products are being purchased by it for the purpose of a business and accordingly, the Consumer Guarantees Act 1993 does not apply.