Terms & Conditions

fCloud Solutions Limited welcome you to our website, by viewing the pages of our site, you acknowledge that you have read and accepted these terms and conditions. All services and products supplied by fCloud Solutions Limited to the client are supplied subject to the following terms & conditions including individual SLAs for each organisation. Services are supplied under a statement of work signed by the client and fCloud Solutions Limited, any outlines of the statement of work which may conflict with any of these terms & conditions will take precedence over these term and conditions. The information provided in this site is based on information supplied by fCloud (unless otherwise specified), and is intended only as an introduction and possible guide to fCloud and its range of services.

Although the information on this web site has been prepared with care and in good faith, this site is an information service only, and no guarantee is given that the information is complete, accurate or up to date, or that it can be relied upon for any particular purpose. Accordingly, fCloud does not accept any liability for any loss or damage which may directly or indirectly result from any advice, opinion, information, representation or omission, whether negligent or otherwise, contained on this site.

Changes or updates to the content of this site may occur without notice. Your continued use of the website after any such changes will be deemed acceptance of the changed terms and conditions.

fCloud does not accept any responsibility for inaccuracies or omissions in relation to this web site.

Please be aware that any online interactions with fCloud may be monitored by fCloud or authorised third parties for information assurance purposes.

USE OF SITE

When you visit our web site the following information may be gathered:

  • Date & Time of your website visit
  • Duration of your website visit
  • Website Individual Pages you visit
  • IP Address
  • ISP information from which you access the internet
  • Referring address which linked you to our website

We use this information to measure the number of visitors to the different pages of our site and to help us make our site more useful to visitors.

No personally identifying information is obtained by us unless you choose to provide such information. Should you provide such information you consent to the reasonable business use of such information to enable us to respond to your request or comment. We will make every reasonable effort to keep that information secure, and will not disclose to any other party that information other than to fulfil any business obligations to you.

You must not use this site or its contents:

  • In breach of any legislation or for any unlawful act
  • To damage or disrupt this site or any other fCloud website

INTELLECTUAL PROPERTY

fCloud owns all copyright and all other intellectual property rights in this site. Everything on this site is copyrighted unless otherwise noted. fCloud welcomes the use of this site for your non-commercial use only provided that you do not remove any copyright, trademark and other proprietary notices contained in the content. We advise that you may not copy or display for redistribution to third parties or for commercial purposes any portion of this site without fCloud’s express permission.

Permission is given for fair dealing with this material as permitted under copyright legislation, including for the purposes of private study and research. Apart from those uses, no part may be reproduced without prior written permission from fCloud Limited.

Requests and inquiries concerning reproduction rights should be directed to legal@fcloud.co.nz

INDEMNITIES & EXCLUSIONS

You agree to indemnify and hold fCloud (and its related entities) harmless against any liabilities, claims, costs, loss (including indirect and consequential loss) or damage incurred as a result of any material you post in the comments sections, or as a result of any breach by you of these terms and conditions, or in any other way connected to your use of this website.

Notwithstanding any indemnity provided by you under these terms and conditions, fCloud and/or its related entities retain the right to assume the conduct of any defence to a claim brought against them, and of any proceeding or appeal issued by them, and you agree to provide all reasonable cooperation (including by making available relevant documents) that fCloud may require from you in relation to any such claim, proceeding or appeal.

fCloud excludes all liability whether in contract or in tort (including negligence) to the maximum extent permitted by law, as to the compatibility, security, quality or fitness for purpose of any content on this website.

WAIVER

If we do not act in relation to a breach by you of these terms, we do not waive our right to act with respect to that breach, or subsequent or similar breaches.

INABILITY TO ENFORCE

If any part of these terms is found to be unenforceable it will not affect the enforceability of the remainder within these terms and conditions.

LINKING POLICY

References to other sites are provided as an information service only and should not be construed as an endorsement of any organisation or product. Conversely, omissions should not be construed as non-endorsement. Although care has been taken to provide links to suitable material from this site, no guarantee can be given about the suitability, completeness or accuracy of any of the material that this site may be linked to or other material on the Internet. fCloud does not accept any responsibility for the content of material that may be encountered.

Further, fCloud does not accept any liability if sites referred to or services offered in this home page are not available at any particular time.

GOVERNING LAW

These terms and conditions shall be construed and applied in accordance with the laws of New Zealand.

SERVICES

All partiesobligation:

  • Act with accountability, integrity, openness, collaboration and good faith
  • Complies with all applicable laws and regulations
  • Discuss matters affecting the delivery of the services, whenever necessary
  • Notify each party of any issue that could impact on services and charges

Our client’s obligation:

fCloud Solutions Limited obligation:

  • on time and to the required performance standards or quality set out in Schedule 1 or reasonably notified by the Client to fCloud Solutions Limited from time to time
  • within the amounts agreed as Charges, and
  • with due care, skill and diligence, and to the appropriate professional standard or in accordance with good industry practice as would be expected from a leading fCloud Solutions Limited in the relevant industry.
  • ensure that its Personnel have the necessary skills, experience, training and resources to successfully deliver the Services
  • provide all equipment and resources necessary to deliver the services and comply with any codes of conduct notified by the Client to fCloud Solutions Limited from time to time.

If fCloud Solutions Limited is at a client’s site, we must follow the client’s policies and all procedures related to health and safety and security requirements. The client must tell fCloud Solutions Limited what the relevant policies and procedures are and must supply fCloud Solutions Limited a copy of the requirements.

CHARGES AND PAYMENT

The Charges are the total maximum amount payable by our client to fCloud Solutions Limited for delivery of the Services. Charges include Fees and, where agreed, Expenses and Daily Allowances.

fCloud Solutions Limited must provide valid tax invoices for all Charges upon completion of the services or delivery of the goods. The Client has no obligation to pay the Charges set out on an invoice, which is not a valid tax invoice. A valid a tax invoice must:

  • clearly show all GST due
  • be in New Zealand currency
  • be clearly marked ‘Tax invoice’
  • contain fCloud Solutions Limited‘s name, address and GST number,
  • contain the Client’s name and address and be marked for the person named in a Statement of Work or Purchase Order
  • state the date the invoice was issued
  • provide a description of the Services supplied, including the amount of time spent in the delivery of the Services if payment is based on an Hourly Fee Rate or Daily Fee Rate
  • contain the Client’s contract reference or purchase order number if there is one
  • state the Charges due, calculated correctly, and
  • be supported by GST receipts if Expenses are claimed.

Payment

If the Client receives a valid tax invoice on or before the 5th Business Day of the month, the Client must pay that tax invoice on or before the 20th calendar day of that month. Any valid tax invoice received after the 5th Business Day of the month will be paid by the Client on the 20th calendar day of the month following the month it is received. The Client’s obligation to pay is subject to clauses 3.2 and 3.4.

If the Client disputes a tax invoice or any part of a tax invoice that complies with clause 3.2, the Client must notify fCloud Solutions Limited within 5 Business Days of the date of receipt of the tax invoice. The Client must pay the portion of the tax invoice that is not in dispute. The Client may withhold payment of the disputed portion until the dispute is resolved.

INFORMATION MANAGEMENT

Information and Records

keep and maintain Records in accordance with prudent business practice and all applicable laws make sure the Records clearly identify all relevant time and Expenses incurred in providing the Services make sure the records are easy to access, and keep the Records safe.

fCloud Solutions Limited will give information to the Client relating to the Services that the Client reasonably requests. All information provided by fCloud Solutions Limited will be in a format that is usable by the Client and delivered within a reasonable time of the request.

fCloud Solutions Limited will co-operate with the Client to provide information immediately if the information is required by the Client to comply with an enquiry or its statutory, parliamentary, or other reporting obligations.

fCloud Solutions Limited will make its Records available to the Client for 7 years after the end of the financial year to which they relate (unless already provided to the Client earlier).

fCloud Solutions Limited will make sure that Records provided by the Client or created for the Client, are securely managed and securely destroyed on their disposal.

THE CONTRACTUAL RELATIONSHIP

Independent contractor

Nothing in these Terms & conditions constitutes a legal relationship between the Parties of partnership, joint venture, agency, or employment. fCloud Solutions Limited is responsible for the liability of its own, and its Personnel’s, salary, wages, holiday or redundancy payments and any GST, corporate, personal and withholding taxes, ACC premiums or other levies attributable to fCloud Solutions Limited‘s business or the engagement of its Personnel.

Neither Party can represent the other

Neither Party has authority to bind or represent the other Party in any way or for any purpose.

Permission to transfer rights or obligations

Neither party may transfer any of its rights or obligations under these Terms & conditions only if it has the other party’s prior written approval. Neither party will unreasonably withhold its approval.

SUBCONTRACTORS

Rules about subcontracting

fCloud Solutions Limited must not enter into a contract with someone else to deliver any part of the Services without the Client’s approval.

fCloud Solutions Limited‘s responsibilities

fCloud Solutions Limited is responsible for ensuring the suitability of any Subcontractor and the Subcontractor’s capability and capacity to deliver that aspect of the Services being subcontracted.

fCloud Solutions Limited must ensure that:

  • each Subcontractor is fully aware of fCloud Solutions Limited‘s obligations under these Terms & conditions, and
  • any subcontract it enters into is on terms that are consistent with these Terms & conditions.

fCloud Solutions Limited continues to be responsible for delivering the Services under these Terms & conditions even if aspects of the Services are subcontracted.

INSURANCE

Where insurance is a requirement

fCloud Solutions Limited will ensure its risks of doing business are adequately covered, whether by insurance or otherwise. fCloud Solutions Limited will:

  • take out insurance, with a reputable insurer, and maintain that insurance cover during the provision of Services and for a period of 3 years after the End Date, and
  • within 10 Business Days of a request from the Client provide a certificate confirming the nature of the insurance cover and proving that each policy is current.

CONFLICTS OF INTEREST

Avoiding Conflicts of Interest

fCloud Solutions Limited warrants that as at the Start Date, it has no Conflict of Interest in providing the Services.

fCloud Solutions Limited will do its best to avoid situations that may lead to a Conflict of Interest arising.

Commitment to inform the Client

fCloud Solutions Limited will inform the Client immediately, and in writing, if any Conflict of Interest arises in relation to the Services. If a Conflict of Interest does arise the Parties will discuss, agree and record in writing whether it can be managed and, if so, how it will be managed. Each Party must pay its own costs in relation to managing a Conflict of Interest.

RESOLVING DISPUTES

Steps to resolving disputes

The Parties agree to use their best endeavours to resolve any dispute or difference that may arise under these Terms & conditions. The following process will apply to disputes:

  • a Party will notify the other if it considers a matter is in dispute
  • a Director of fCloud Solutions Limited will attempt to resolve the dispute through direct negotiation with the nominated senior manager of the Client, and
  • if the senior managers have not resolved the dispute within 10 Business Days of it being referred to them, the Parties shall refer the dispute to mediation or some other form of alternative dispute resolution.

If a dispute is referred to mediation, the mediation will be conducted:

  • by a single mediator agreed by the Parties or if they cannot agree, appointed by the Chair of LEADR NZ Inc.
  • on the terms of the LEADR NZ Inc. standard mediation agreement, and
  • at a fee to be agreed by the Parties or if they cannot agree, at a fee determined by the Chair of LEADR NZ Inc.

Each Party will pay its own costs of mediation or alternative dispute resolution under this clause 9.

Obligations during a dispute

If there is a dispute, each Party will continue to perform its obligations under these Terms & conditions as far as practical given the nature of the dispute.

Taking court action

Each Party agrees not to start any court action in relation to a dispute until it has complied with the process described in clause 9.1, unless court action is necessary to preserve a Party’s rights.

INTELLECTUAL PROPERTY RIGHTS

Ownership of Intellectual Property Rights

Pre-existing Intellectual Property Rights remain the property of their current owner.

New Intellectual Property Rights in the Deliverables become the property of the Client when they are created.

fCloud Solutions Limited grants to the Client a perpetual, non-exclusive, worldwide and royalty-free licence to use, for any purpose, all Intellectual Property Rights in the Deliverables that are not owned by the Client. This licence includes the right to use, copy, modify and distribute the Deliverables.

fCloud Solutions Limitedindemnity

fCloud Solutions Limited warrants that it is legally entitled to do the things stated in this contract in regard to the Intellectual Property Rights in the Deliverables.

fCloud Solutions Limited warrants that Pre-existing and New Intellectual Property Rights provided by fCloud Solutions Limited and incorporated in the Services and Deliverables do not infringe the Intellectual Property Rights of any third party.

fCloud Solutions Limited indemnifies the Client in respect of any expenses, damage or liability incurred by the Client in connection with any third-party claim that the delivery of the Services or Deliverables to the Client or the Client’s use of them, infringes a third party’s rights. This indemnity is not subject to any limitation or cap on liability that may be stated elsewhere in these Terms & conditions.

CONFIDENTIAL INFORMATION

Protection of Confidential Information

Each Party confirms that it has adequate security measures to safeguard the other Party’s Confidential Information from unauthorised access or use by third parties, and that it will not use or disclose the other Party’s Confidential Information to any person or organisation other than:

  • to the extent that use, or disclosure is necessary for the purposes of providing the Deliverables or Services or in the case of the Client using the Deliverables or Services
  • if the other Party gives prior written approval to the use or disclosure
  • if the use or disclosure is required by law (including under the Official Information Act 1982), Ministers or parliamentary convention, or
  • in relation to disclosure, if the information has already become public, other than through a breach of the obligation of confidentiality by one of the Parties.

Obligation to inform staff

Each Party will ensure that its Personnel:

  • Are aware of the confidentiality obligations in these Terms & conditions, and

do not use or disclose any of the other Party’s Confidential Information except as allowed by these Terms & conditions.

EXTRAORDINARY EVENTS

No fault if failure due to an Extraordinary Event

Neither Party will be liable to the other for any failure to perform its obligations under these Terms & conditions where the failure is due to an Extraordinary Event.

Obligations of the affected Party

A Party who wishes to claim suspension of its obligations due to an Extraordinary Event must notify the other Party as soon as reasonably possible. The Notice must state:

  • The nature of the circumstances giving rise to the Extraordinary Event
  • The extent of that Party’s inability to perform under these Terms & conditions
  • The likely duration of that non-performance, and
  • What steps are being taken to minimise the impact of the Extraordinary Event on the delivery of Services.

Alternative arrangements requiring immediate termination

If the client, acting reasonably, requires the services to be supplied during the period affected by an extraordinary event, the client may choose to terminate services immediately by giving notice.

Termination of Services

If a party is unable to perform any obligations under this contract for 10 business days or more due to an extraordinary event, the other party may terminate this contract immediately by giving its legal notice request.

GENERAL

Waiver

If a party breaches these terms & conditions and the other Party does not immediately enforce its rights resulting from the breach that:

  • Does not mean that the Party in breach is released or excused from its obligation to perform the obligation at the time or in the future.
  • Does not prevent the other Party from exercising its rights resulting from the breach at a later time.

New Zealand law, currency and time-zone.

These terms & conditions will be governed and interpreted in accordance with New Zealand law. All currency is in NZD. All operation dates and times are operating under NZDT & NZST.

Prohibited poaching

Each party will, without the other’s written consent, deliberately solicit for employment or hire any person who is or has been employed by the other and involved in the delivery of the services. There is a six month stand down period stated in fCloud Solutions Limited legal employment contract prohibiting members of staff from working with its partners and clients for six months this also includes legitimate advertisements.

DEFINITIONS

When used in these terms & conditions the following terms have the meaning beside them:

Business Day: A day when most businesses are open for business in New Zealand. It excludes Saturday, Sunday, and public holidays. A Business Day starts at 8.30am and ends at 5pm.

Client: The client is the purchaser of the services provided by fCloud Solutions Limited and partners.

Charges: The total amount payable by the Client to fCloud Solutions Limited. fCloud Solutions Limited’s Charges include Fees and any Expenses and Daily Allowances.

Confidential Information: Information that:

  • All information between both parties by its nature is confidential.
  • Both parties agree to non-disclosure for all employees by default.
  • Marked by either party as commercial confidential or in confidence.
  • Provided by either party or a third party in confidence.
  • Each party knows or ought to know is confidential or is of a sensitive by nature.

Conflict of Interest: If either party or its personnel’s personal or business interests or obligations do or could conflict or be perceived to conflict with its obligations under this contract.

  • Where the conflict is about to happen or could happen, or
  • Where other people may reasonably think that a person is compromised.
  • An employee of each party associates their name or their work with an external competitor in a way that implies endorsement or sponsorship.

Daily Fee Rate: If fCloud Solutions Limited‘s fee rate is expressed as a daily fee rate this is the fee payable for each day spent in the delivery of services. This is a minimum of 8 working hours.

Deliverables: A tangible output resulting from the delivery of services. A deliverable may be a document, equipment, goods, licensing, information or data stored by any means including all copies and extracts of the same.

Extraordinary Events: An event that is beyond the control of each party immediately affected by the event. This does not include any risk or event that each party claiming could have prevented or overcome by following controlled processes.

  • Natural disasters out of each parties control.
  • Act of terrorism which may cause temporary state of emergency.
  • Act of war.

Fees: The amount payable to fCloud Solutions Limited for the time spent in the delivery of the services, goods, excluding any licensing and other expenses.

GST: The goods and services tax payable in accordance with the New Zealand Goods and Services Tax Act 1985.

Hourly Fee Rate: If fCloud Solutions Limited’s fee rate is expressed as an hourly fee rate this is the fee payable for each hour spent delivering the requested services.

Notice: A formal or legal communication from each party to the other.

Pre-existing Intellectual Property Rights: Intellectual Property Rights developed before the date of this contract does not cover later modifications, adaptations or additions in future.

Records: All information necessary for the management of the services and the deliverables include, but are not limited to, reports, invoices, letters, emails, notes of meetings, photographs and other digital recordings will have soft copies stored electronically for 7 years from date of creation.

Services: All work, tasks and deliverables that are performed and delivered by fCloud Solutions Limited under contract.

Subcontractors: Individuals, companies and/or other organisations contracted by fCloud Solutions Limited are to deliver on behalf of fCloud Solutions Limited’s obligations under contract and maintaining privacy under non-disclosure.