ONIONCRM General Terms

  1. INTERPRETATION
    1. Agreement means the agreement for Services between You and OnionCRM and includes the terms of any Scope of Work, Proposal, and these General Terms.
    2. Confidential Information includes the terms of the Agreement, and all information exchanged between the parties to this Agreement, whether in writing, electronically, or orally, regardless of whether the exchange occurred prior to the term of the Agreement, but does not include information that is or becomes publicly available other than through unauthorised disclosure.
    3. Fees means the fees for the Services specified in the Proposal or Scope of Work, or otherwise recorded in writing by Us and accepted by You.
    4. General Terms means these general terms, as varied by OnionCRM from time to time.
    5. Intellectual Property means all respective intellectual property rights of the parties to this Agreement, including in any designs, specifications, media content, patents, copyrights, trademarks, software, software development code, or know-how.
    6. Proposal is a high level document prepared by OnionCRM that records the Services that You have requested OnionCRM to provide to You.
    7. Scope of Work is a detailed document prepared by OnionCRM for complex Services that You have requested OnionCRM to provide to You.
    8. Services means any professional and technical services that OnionCRM has agreed to provide to You under the terms of the Agreement.
    9. Start Date means the date of signing or acceptance of the Agreement.
    10. Third Party means any third party engaged by You or OnionCRM in connection with providing the Services to You.
    11. We, Us, or Our refers to Onion CRM Limited, a company registered in New Zealand, and trading as OnionCRM, including OnionCRM’s employees and agents.
    12. You or Your refers to the customer recorded in the Agreement.
    13. All amounts expressed in dollars of $ will be deemed to be in New Zealand currency and exclude goods and services tax.
    14. The term ‘including’ or any similar expression will be deemed to be followed by the words ‘without limitation’.
  2. APPLICATION
    1. These General Terms are incorporated into the Agreement. The General terms will prevail except for any inconsistency with the terms of a Scope of Work or Proposal, or otherwise varied in writing by Us and accepted by You.
  3. ONIONCRM’S OBLIGATIONS
    1. Services: OnionCRM will provide the Services:
      1. in accordance with the Agreement, including all specifications set out in a Proposal or Scope of Work;
      2. from the Start Date until the parties agree that the Services have been delivered or otherwise cancel the Agreement; and
      3. with reasonable care, diligence, and skill.
    2. Confidential Information: OnionCRM will maintain confidentiality in respect of Your Confidential Information at all times when providing the Services.  OnionCRM will only disclose Confidential Information as strictly required in order to provide the Services and with Your prior written consent.  OnionCRM will, immediately upon request, return to You all Confidential Information in its possession.  Our obligations under this clause continue after the end of this Agreement.
  4. YOUR OBLIGATIONS AND RISK
    1. Fees: You will pay the Fees to OnionCRM promptly and within the 20th of the following month of any invoice rendered for any Services.Information: You will provide, on request, all information and assistance reasonably required by OnionCRM to provide the Services.
    2. Authority: We have no obligation to enquire into the authority of any person requesting Services on Your behalf.
    3. Confidential Information: You will preserve the confidentiality of Our Confidential Information at all times.  Your obligations under this clause will continue after this Agreement ends.
    4. No Liability: OnionCRM will not be liable for any direct or indirect damage, economic loss of any kind, or any other loss or other expenses contributed to, or caused by:
      1. Your failure to comply with the Agreement; or
      2. the use of any Third Party product, or reliance on any advice, or services of a Third Party.
      3. No Warranty: You acknowledge that no warranty is given by OnionCRM as to any outcome or consequence the Services may have on Your business.
      4. Use of Services: You acknowledge that You are solely responsible for:
        1. the manner and extent to which You use and benefit from the Services; and
        2. any representations you make to third parties about the Services.
  5. YOUR INDEMNITY
    1. Indemnity: You will indemnity OnionCRM:
      1. for any damage, economic or other loss, or expenses (including legal expenses on solicitor-client basis) caused by Your use of the Services or Third Party product;
      2. against any claims or proceedings against OnionCRM (including legal expenses on solicitor-client basis) to the extent caused by You, instructed by you, or arising from Your breach of the Agreement; and
      3. against any claims or proceedings against OnionCRM (including legal expenses on solicitor-client basis) arising in any way from Your use of the Services or any Third Party product.
  6. PAYMENT
    1. Due Date: You agree that You will pay the Fees by way of electronic transfer to OnionCRM’s nominated bank account by the 20th day of the following month of the date of OnionCRM’s invoices.
    2. Payment: Payment of Fees must be made in full without any deductions or set-off.
    3. Enforcement: You will pay all costs, expenses, and charges incurred by OnionCRM in enforcing Your payment obligations under the Agreement, including all debt collection and solicitor-client costs.
    4. Refuse Services: OnionCRM reserves the right to refuse to provide Services if Fees are unpaid.
    5. Interest: Interest will accrue on all overdue amounts at the rate of 5% per year, calculated on a daily basis and compounding monthly from the due date for payment until the date payment is made in full.
  7. INTELLECTUAL PROPERTY
    1. Disclosure: Each party acknowledges that all information imparted by each to the other in connection with the Services, including methods, technical expertise, and knowledge, is and will remain each respective party’s Intellectual Property.
    2. Non-disclosure: Each party warrants that they will not use or disclose the other party’s Intellectual Property for any purpose other than strictly in accordance with this Agreement.
    3. Third Parties: You warrant that You will not do anything or require OnionCRM to do anything that would cause Us to breach the intellectual property rights of any person or Third Party.  OnionCRM expressly excludes any warranty that the Services do not infringe the intellectual property rights of any third party.
    4. Reuse or Modification: You acknowledge that reuse or modification of OnionCRM’s Intellectual Property is at Your sole risk, and You agree to indemnity OnionCRM against any claim, damages, or expenses arising out of such reuse or modification by You or another person.
  8. LIMITATION OF LIABILITY
    1. No Warranties: To the extent permitted by law, OnionCRM excludes all warranties, conditions, representations, whether express or implied, statutory or otherwise, relating in any way to the Services.
    2. Exclusion of Liability: To the extent permitted by law, OnionCRM excludes liability, including for negligence, to You or anyone else in respect of any loss or damage (including special, indirect, or consequential loss or damage), costs and expenses suffered by You or claims made against You arising from or in connection with any use of Services provided to You or any other person.
    3. Fit for Purpose: No warranty is given that the Services will be fit for Your purposes.
    4. Interruptions or Errors: No warranty is given that the Services will be free from interruptions or errors, including any Third Party software, or internet connection, used in connection with the Services.
    5. Consumer Guarantees Act 1993: You acknowledge that the Services are being provided for business purposes and accordingly the Consumer Guarantees Act 1993 will not apply to the Services or the Agreement.
  9. DEFAULT
    1. Consequences of Default: If You breach or fail to perform any obligation under this Agreement or any other contract with OnionCRM, We may, without prejudice and in addition to any other rights or remedies We may have, exercise all or any of the following rights:
    2. Delay performance of any Service until the matter is resolved to Our satisfaction.
    3. Suspend or cancel in whole or in part the Agreement or any other contract between You and OnionCRM by written notice to You.
    4. Recover from You all amounts for any damage, losses, costs, or expenses, including actual legal costs and expenses arising from Your default of this Agreement, including Your payment obligations.
    5. By notice to You, require that all amounts owed to OnionCRM whether due or not are paid immediately.
  10. DISPUTE RESOLUTION
    1. Process: If there is a dispute as to any matter connected with the Agreement or between the parties, other than a dispute in connection with unpaid Fees :
    2. the parties will attempt to resolve the dispute by mutual negotiation;
    3. if that fails to resolve the dispute, either party may provide written notice to the other party that it seeks to have the dispute submitted to binding meditation and resolved by a mutually agreed mediator. The parties will then attempt to agree the time, location, and scope of the mediation, and the identity of the mediator;
    4. if no agreement can be reached in terms of clause 10(a)(i) above within 10 days of the notice, the dispute must be referred to a mediator nominated for that purpose by the then current President of the New Zealand Law Society. The nominated mediator will then determine the time, location, and scope of the mediation; and
    5. the mediator will be instructed that the dispute needs to be resolved within one calendar month of his or her appointment, and that he or she may make an appropriate instruction as to payment of costs incurred in settling the dispute. The mediator’s decision will be final.
    6. Injunctive Relief: Nothing contained in the dispute resolution procedures in this clause may prevent either party from seeking injunctive relief from a court of appropriate jurisdiction, where failure to obtain such relief would or is likely to cause serious damage to the party concerned.
  11. GENERAL
    1. Performance: Time shall be of the essence in the performance of all obligations under the Agreement.No Waiver: Any instance where a right under these General Terms has not been enforced or exercised shall not be construed as a waiver of that right at any time.
    2. No Assignment: You may not assign Your rights or obligations under the Agreement.
    3. Subcontracting Services: We may sub-contract the performance of any of Our obligations under the Agreement in our sole discretion and without prior notice to You.
    4. Notices: Any written notice or communication in connection with the Agreement must be given to the customer contact specified in the Scope of Work.
    5. Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
    6. Governing Law: The Agreement is governed by the laws of the New Zealand and subject to the sole jurisdiction of New Zealand’s courts.
    7. Force-majeure: Neither party will be liable for any default under the Agreement due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, or other event beyond the reasonable control of either party.