Stratus Blue

Terms And Conditions

1. Definitions

    • “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Stratus Blue to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      • if there is more than one Client, is a reference to each Client jointly and severally; and
      • if the Client is a partnership, it shall bind each partner jointly and severally; and
      • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Client’s executors, administrators, successors and permitted assigns.
    • “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information and pricing details.
    • “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    • “Cookies” means small files which are stored on a user’s computer.  They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using Stratus Blue’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
    • “Price” shall mean the cost of the Services (plus any Goods and Services Tax (“GST”) where applicable) as agreed between Stratus Blue and the Client subject to clause 6 of this Contract.
    • “Services” means all Goods (which includes any goods, hardware, files, information, printed or virtual material, data or software) or Services (which includes any installation and/or repair of Goods or components, advice or recommendations, support services, assessment and treatment planning, reporting, technical service and support, analysis, training, and project management or service sourcing) supplied by Stratus Blue to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    • “Stratus Blue” means Stratus Blue Limited, its successors and assigns.

2. Acceptance

      • The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by this Contract if the Client places an order for, or accepts, Services provided by Stratus Blue.
      • In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
      • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
      • None of Stratus Blue’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Stratus Blue in writing, nor is Stratus Blue bound by any such unauthorised statements.
      • Once accepted by the Client, Stratus Blue’s quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, Stratus Blue shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
      • This Contract constitutes the entire agreement between Stratus Blue and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by Stratus Blue, but not embodied in this Contract.
      • Any advice, recommendations, information, assistance or service provided by Stratus Blue in relation to Services provided is given in good faith, is based on information provided to Stratus Blue, and Stratus Blue’s own knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and Stratus Blue shall make all effort to offer the best solution to the Client.
      • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017, or any other applicable provisions of that Act or any Regulations referred to in that Act.
      • These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on Stratus Blue’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
      • These terms and conditions may be meant to be read in conjunction with Stratus Blue’s Hire Form, and where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment, as defined therein.

3. Errors and Omissions

    • The Client acknowledges and accepts that Stratus Blue shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by Stratus Blue in the formation and/or administration of this Contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by Stratus Blue in respect of the Services.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of Stratus Blue; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Change in Control

    • The Client shall give Stratus Blue not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by Stratus Blue as a result of the Client’s failure to comply with this clause.

5. Authorised Representatives

    • The Client acknowledges that Stratus Blue shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to Stratus Blue, that person shall have the full authority of the Client to order any Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to Stratus Blue for all additional costs incurred by Stratus Blue (including Stratus Blue’s profit margin) in providing any Services or variation/s requested thereto by the Client’s duly authorised representative.

6. Price and Payment

    • At Stratus Blue’s sole discretion the Price shall be either:
      • as indicated on any invoice provided by Stratus Blue to the Client; or
      • the Price as at the date of delivery of the Goods according to Stratus Blue’s current price list; or
      • Stratus Blue’s quoted price (subject to clause 2(b)) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    • Additional and/or Varied Services:
      • Stratus Blue agrees that there will be no charge in the preparation of this Contract, which may include Client discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at Stratus Blue’s sole discretion).
      • Stratus Blue reserves the right to amend the Price:
        • where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of Stratus Blue’s standard hourly rates (time and a half for any Services provided outside Stratus Blue’s normal business hours); or
        • in the event of increases to Stratus Blue in the cost of labour or materials (including the increase in overseas transactions as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond Stratus Blue’s control.
      • Variations will be charged for on the basis of Stratus Blue’s quotation, and will be detailed in writing, and shown as variations on Stratus Blue’s invoice. The Client shall be required to respond to any variation submitted by Stratus Blue within ten (10) working days. Failure to do so will entitle Stratus Blue to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    • At Stratus Blue’s sole discretion, a deposit of fifty percent (50%) of the Price may be required upon request by Stratus Blue.
    • Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Stratus Blue, which may be:
      • on completion of the Services; or
      • by way of instalments/progress payments in accordance with Stratus Blue’s payment schedule;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is twenty (20) days following the end of the month of the date of any invoice/s and/or statement furnished to the Client by Stratus Blue.
    • Payment may be made by cash, cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Stratus Blue.
    • Stratus Blue may in its discretion allocate any payment received from the Client towards any invoice that Stratus Blue determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Stratus Blue may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Stratus Blue, payment will be deemed to be allocated in such manner as preserves the maximum value of Stratus Blue’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
    • The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Stratus Blue nor to withhold payment of any invoice because part of that invoice is in dispute. Any invoice query/dispute will not be recognised if notified outside of time period stated in clause 4(d).
    • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Stratus Blue an amount equal to any GST Stratus Blue must pay for any supply of Services by Stratus Blue under this, or any other, agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
    • Receipt by Stratus Blue of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then Stratus Blue’s ownership or rights in respect of the Services, and this Contract, shall continue.

7. Terms of Use

    • When the Client uses the Services, the Client must:
      • comply with all laws, all directors by a regulator, all notices issued by authorisation of, or under, law (e.g. Copyright Act 1994) and reasonable directions by Stratus Blue; and
      • keep all account information, password, data and Equipment confidential and secure. The Client remains responsible for any use or misuse of such; and
      • follow any reasonable instructions provided by Stratus Blue in relation to the Services; and
      • access and use the Services solely in accordance with these terms and conditions and any reasonable instructions provided by Stratus Blue.
    • The Client must not:
      • use, or attempt to use, or permit another person to use or attempt to use, the Services:
        • so as to cause offence, to defame, abuse, communicate obscenities, menace or annoy;
        • for any purpose or activity of an illegal or fraudulent nature in any jurisdiction, including damaging any property or injuring or killing any person, to breach the security of any computer network (hacking), to breach any persons privacy, or to distribute unsolicited software or junk mail;
        • for advertising purposes without Stratus Blue’s express written consent;
        • to breach any of the intellectual property rights held by Stratus Blue or any third party, which exist with the Services or any supplied Equipment (including, but not limited to, copying, distributing, selling, renting, leasing or adapting any of the Services) or any property accessible by the Services, with the exception of making one (1) back-up copy of any supplied software or transferring of any supplied software to the hard disk drive of one (1) computer;
        • to transmit, publish or communicate materials which is defamatory, offensive, abusive, indecent, menacing or unwanted;
        • to expose Stratus Blue to liability (including any claims for damages);
        • in any way which damages, interferes with or interrupts the Services, or a third party service provider’s network used to provide the Services; or
        • to intercept or attempt to intercept any communication not otherwise intended for the Client.
      • If, in Stratus Blue’s opinion, the Services are being used by anyone in breach of these terms and conditions (including clause 7) or internet etiquette, Stratus Blue may:
        • refuse to post such infringing information to public areas (including, but not limited to, bulletin boards, databases or software libraries);
        • remove, review or edit such infringing information from any network managed by Stratus Blue, with the exception of private electronic messages;
        • discontinue any infringing communication;
        • suspend the Services indefinitely, or for a specific period;
        • terminate the Services, and refuse to provide the Services to the Client, or the Client’s associates, in the future;
        • inform appropriate government and regulatory authorities of suspected illegal or infringing conduct.
      • The Client authorise Stratus Blue to delete without notice or liability any information or materials found on the Equipment (or hardware controlled by Stratus Blue) that is found to be of an obscene nature, unauthorised, unlawful, uncollected for an excessive period of time or excessive in volume.

8. Provision of the Services and Delivery of the Goods

    • Stratus Blue may provide the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
    • Any time specified by Stratus Blue for provision of the Services is an estimate only and Stratus Blue will not be liable for any loss or damage incurred by the Client as a result of provision being late. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that Stratus Blue is unable to provide the Services as agreed solely due to any action or inaction of the Client, then Stratus Blue shall be entitled to:
      • charge the Client additionally for re-providing the Services at a later time and date; or
      • subject to clause 4(b), terminate this Contract.
    • Delivery (“Delivery”) of the Goods is taken to occur at the time that:
      • the Client or the Client’s nominated carrier takes possession of the Goods at Stratus Blue’s address;
      • Stratus Blue (or Stratus Blue’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address; and
      • at Straus Blue’s sole discretion, the cost of Delivery is in addition to the Price.
    • Subject to any agreed service levels and these Terms and Conditions, Stratus Blue will use reasonable care and skills in providing the Services to ensure the Client receives continual, uninterrupted and fault-free Services for the duration of this Contract. However, due to Stratus Blue’s reliance on systems, hardware or software and services Stratus Blue does not own or control (including third party service providers), Stratus Blue cannot guarantee the availability of the Services at all times, which shall be subject to regularly scheduled maintenance cycles, and any events/circumstances beyond Stratus Blue’s control. Any failure or delay by Stratus Blue to provide the Services (promptly or at all) due to circumstances beyond Stratus Blue’s control shall not itself constitute a default by Stratus Blue under this Contract. Only the Services explicitly included in this Contract will be provided and supported, all other services offered are specifically excluded. Where necessary for commercial, technical or other reasons:
      • a network or third party service provider connected to this Contract may suspend or terminate its connection to any services provided; and
      • those services may suspend or terminate their connection to another network or service provider.
    • Stratus Blue has no responsibility to provide training in the use of the Services and/or related applications.
    • In the event during the course of the Services there is any reduction in speed and/or coverage imposed from a third party service provider that subsequently effects the Client’s operations, the Client will be entitled to terminate the Contract under clause 20 without incurring any penalty, where such changes are beyond the control of Stratus Blue. However, Stratus Blue will in all cases firstly attempt to resolve such occurrences with assisting in sourcing an alternative third party service provider to ensure limited disruption.
    • Whilst Stratus Blue may supply Equipment in order to facilitate the provision of Services (e.g. routers, etc.), subsequent replacement of such should any failure thereof occur beyond its warranty period is the Client’s responsibility and at the Client’s cost.

9. Fault Escalation Responsibilities

    • The Client is responsible for notifying Stratus Blue of a service fault as quickly as possible.
    • Stratus Blue is responsible for trouble-shooting the source of the service fault, and either rectifying the fault in a timely fashion (i.e. if the fault is within Stratus Blue’s network) or escalating the fault to the relevant third party provider.

10. Fault Restoration

    • Fault restoration will be undertaken as specified in the Service Level Agreement, faults reported within Stratus Blue’s office hours of 8.30am-5.00pm Monday to Friday will be responded to within Stratus Blue’s best efforts, but no later than within five (5) working days.

11. Client’s Responsibilities

    • It is the Client’s responsibility to:
      • provide all necessary services and amenities to enable Stratus Blue to provide the Services;
      • ensure that the premises are structurally sound and in a proper condition for the Services to proceed;
      • provide safe and secure site storage;
      • obtain all permits and consents as may be required for the Services;
      • make the premises available on the agreed date/s and time/s. If installation is interrupted by the failure of the Client to adhere to the schedule of Services agreed to between Stratus Blue and the Client, any additional costs will be invoiced to the Client as an extra;
      • ensure that Stratus Blue has clear and free access to the nominated address at all times to enable them to provide the Services. Stratus Blue shall not be liable for any loss or damage to the address, unless due to the negligence of Stratus Blue;
      • liaise with the third parties to ensure that all prerequisite work has been completed prior to the provision of the Services;
      • to ensure the Goods are tested and maintained to full operational condition, and to report any faults or abnormalities to Stratus Blue immediately; and
      • where applicable, provide passwords, access codes or other details as required.
    • Stratus Blue shall not be held responsible or liable for any loss, corruption, or deletion of files or data (including, but not limited to the software) resulting from illegal hacking or mislabelling or misfiling.
    • It shall be the Client’s sole responsibility to remove any removable media (including, but not limited to, diskettes, CDs, DVDs, USBs or PC Cards) from the Goods prior to returning or submitting the Goods for repair or replacement.

12. Risk and Limitation of Liability

    • Risk of damage to or loss of the Goods passes to the Client on delivery, and the Client must insure the Goods on or before delivery. If any of the Goods are damaged or destroyed following delivery, but prior to ownership passing to the Client, Stratus Blue is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Stratus Blue is sufficient evidence of Stratus Blue’s rights to receive the insurance proceeds without the need for any person dealing with Stratus Blue to make further enquiries. If the Client requests Stratus Blue to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
    • The Client acknowledges and agrees that Stratus Blue shall not be held responsible or liable for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by Stratus Blue to the Client.
    • The Client agrees that any such suspension or termination referred to in clause 4(a) above will not constitute a breach of this Contract by Stratus Blue and that the Services are provided on an “as is” basis without guarantee of any kind. The Client further agrees that Stratus Blue will not be held liable for any costs, expenses, losses, damages or other liabilities (howsoever arising) which you may incur as a result of a suspension of the Services in accordance with clause 8.4(b) above.
    • Stratus Blue shall be under no liability whatsoever to the Client for any indirect, incidental, special and/or consequential loss and/or expense, claim and/or cost (including legal fees and commissions, loss of profit, business, contracts, opportunity, goodwill, reputation and/or anticipated saving) and/or for any loss or corruption of data suffered by the Client arising out of a breach by Stratus Blue of this Contract and/or caused by any failure by the Client to comply with their obligations under this Contract (alternatively Stratus Blue’s liability shall be limited to damages which under no circumstances shall exceed the Price).
    • Stratus Blue shall not be held liable for any loss or corruption of data or files (including, but not limited to, software programmes) resulting from servicing or repairs being undertaken on the Goods. It is the sole responsibility of the Client to back-up any data which they believe to be important, valuable or irreplaceable prior to bringing in any Goods for servicing or repairs.
    • The Client acknowledges that it is the policy of Stratus Blue to report all findings of illegal material (including, but not limited to, images and software) to the relevant authorities.
    • The Client acknowledges and accepts that non-licenced software cannot be transferred or uploaded by Stratus Blue under any circumstance.

13. Title

    • Stratus Blue and the Client agree that the Client’s obligations to Stratus Blue for the provision of Services shall not cease (and ownership of any Goods shall not pass) until:
      • the Client has paid Stratus Blue all amounts owing to Stratus Blue for the Services; and
      • the Client has met all other obligations due by the Client to Stratus Blue in respect of all contracts between Stratus Blue and the Client.
    • It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
      • the Client is only a bailee of the Goods and must return the Goods to Stratus Blue on request.
      • the Client holds the benefit of the Client’s insurance of the Goods on trust for Stratus Blue and must pay to Stratus Blue the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      • the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Stratus Blue and must pay or deliver the proceeds to Stratus Blue on demand.
      • the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Stratus Blue and must sell, dispose of or return the resulting product to Stratus Blue as it so directs.
      • the Client irrevocably authorises Stratus Blue to enter any premises where Stratus Blue believes the Goods are kept and recover possession of the Goods.
      • Stratus Blue may recover possession of any Goods in transit whether or not delivery has occurred.
      • the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Stratus Blue.
      • Stratus Blue may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.

14. Personal Property Securities Act 1999 (“PPSA”)

    • Upon assenting to this Contract in writing the Client acknowledges and agrees that this Contract constitutes a security agreement for the purposes of the PPSA and a security interest is taken in:
      • all Goods previously supplied, or that will be supplied in the future, by Stratus Blue to the Client and the proceeds from such Goods.
      • all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to Stratus Blue for Services – that have previously been provided and that will be provided in the future by Stratus Blue to the Client.
    • The Client undertakes to:
      • sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Stratus Blue may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      • indemnify, and upon demand reimburse, Stratus Blue for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of Stratus Blue; and
      • immediately advise Stratus Blue of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
    • Stratus Blue and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this Contract.
    • The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
    • Unless otherwise agreed to in writing by Stratus Blue, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    • The Client shall unconditionally ratify any actions taken by Stratus Blue under clauses 1 to 14.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

15. Security and Charge

    • In consideration of Stratus Blue agreeing to provide Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
    • The Client indemnifies Stratus Blue from and against all Stratus Blue’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Stratus Blue’s rights under this clause.
    • The Client irrevocably appoints Stratus Blue and each director of Stratus Blue as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

16. Defects, Returns and Warranties

    • The Client must inspect Stratus Blue’s Services on completion (or Goods on delivery) and must within thirty (30) days notify Stratus Blue in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description or this Contract. The Client shall afford Stratus Blue an opportunity to inspect/review the Services within a reasonable time following such notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions the Services shall be presumed to be free from any defect or damage. For defective Services, which Stratus Blue has agreed in writing that the Client is entitled to reject, Stratus Blue’s liability is limited to either (at Stratus Blue’s discretion) rectifying or re-providing the Services.
    • Returns will only be accepted provided that:
      • the Client has complied with the provisions of clause 1; and
      • Stratus Blue has agreed in writing to accept the return of the Goods; and
      • the Goods are returned at the Client’s cost within seven (7) days of the delivery of the Goods; and
      • Stratus Blue will not be liable for Goods which have not been stored or used in a proper manner; and
      • the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
    • Stratus Blue may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty five percent (25%) of the value of the returned Goods plus any freight.
    • Subject to clause 1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.
    • For Goods not manufactured by Stratus Blue, the warranty shall be the current warranty provided by the manufacturer of the Goods. Stratus Blue shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
    • In the case of second hand or reconditioned Goods, the Client acknowledges that they have had full opportunity to inspect the same and accepts the same with all faults and that no warranty is given by Stratus Blue as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Stratus Blue shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

17. Intellectual Property

    • If during the course of providing the Services, Stratus Blue develops, discovers, or puts into operation a new concept, product or process, or creates any Goods, which is capable of being patented, then such concept, product or process, or Goods shall be and remain the property of Stratus Blue and the Client shall not use or supply the same in any way whatsoever without first obtaining the written consent of Stratus Blue.
    • The Client warrants that all designs, specifications, information and instructions to Stratus Blue will not cause Stratus Blue to infringe any patent, registered design or trademark in the execution of the Client’s order. Furthermore, the Client agrees to indemnify, defend, and hold Stratus Blue harmless from all loss incurred or suffered by Stratus Blue arising from any claims (including third party claims) or demands against them where such loss was caused by any infringement or alleged infringement of any person’s Intellectual Property rights by the Client during its use of the Services.

18. Default and Consequences of Default

    • Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Stratus Blue’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes Stratus Blue any money, the Client shall indemnify Stratus Blue from and against all costs and disbursements incurred by Stratus Blue in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Stratus Blue’s collection agency costs, and bank dishonour fees).
    • Further to any other rights or remedies Stratus Blue may have under this Contract, if a Client has made payment to Stratus Blue, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Stratus Blue under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    • Without prejudice to Stratus Blue’s other remedies at law, Stratus Blue shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Stratus Blue shall, whether or not due for payment, become immediately payable if:
      • any money payable to Stratus Blue becomes overdue, or in Stratus Blue’s opinion the Client will be unable to make a payment when it falls due;
      • the Client has exceeded any applicable credit limit provided by Stratus Blue;
      • the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

19. Confidentiality

    • Subject to clause 2, each party agrees to treat as confidential the other party’s Confidential Information, and agree not to divulge it to any third party, without the other party’s written consent.
    • Both parties agree to:
      • use the Confidential Information of the other party only to the extent required for the purpose it was provided;
      • not copy or reproduce any of the Confidential Information of the other party in any way;
      • only disclose the other party’s Confidential Information to:
        • employees and third-party providers who need access to the information and who have agreed to keep it confidential;
        • its legal advisers and insurance providers if those persons undertake to keep such information confidential; and
        • not disclose the other party’s Confidential Information to any person not referred to in this clause except with the other party’s prior written consent or if required by law, any stock exchange or any regulatory body.
      • Either party must promptly return or destroy all Confidential Information of the other party in its possession or control at the other party’s request unless required by law to retain it.
      • Confidential Information excludes information:
        • generally available in the public domain (without unauthorised disclosure under this Contract);
        • received from a third party entitled to disclose it;
        • that is independently developed.
      • The obligations of this clause 19 shall survive termination or cancellation of this Contract.

20. Cancellation and Termination

    • Without prejudice to any other remedies Stratus Blue may have, if at any time the Client is in breach of any obligation (including those relating to payment, whether or not the payment is due to Stratus Blue) Stratus Blue may restrict access, suspend or terminate the provision of Services to the Client, and any of its other obligations under this Contract. Stratus Blue will not be liable to the Client for any loss or damage the Client suffers because Stratus Blue has exercised its rights under this clause.
    • Either party may, without liability, cancel this Contract, or cancel provision of the Services:
      • if there is no term specified, at any time by giving thirty (30) days’ notice to the other party;
      • if a term is specified, at any time after the end of the term by giving thirty (30) days’ notice to the other party;
    • Stratus Blue may, in addition to their right to cancel under clause 1:
      • do so at any time:
        • prior to the commencement of the Services, by giving notice to the Client, in the event Stratus Blue determine it is not technically, commercially or operationally feasible to provide the Services to the Client;
        • in the event the Client materially breaches this Contract, and such breach is not capable of remedy.
      • In the event that the Client:
        • cancels this Contract, or the provision of Services, prior to the expiry of any specified term, then the Client shall be liable to pay for the provision of the Services until the expiration of the term;
        • fails to give notice of intention to cancel at least thirty (30) days prior to the expiration date of the term, the term shall automatically renew on a monthly basis, unless cancelled by way of the Client providing Stratus Blue with thirty (30) days’ notice.
      • Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this Contract will be terminated by Stratus Blue (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within seven (7) days from the date of the submitted invoice.

21. Privacy Policy

    • All emails, documents, images or other recorded information held or used by Stratus Blue is “Personal Information” as defined and referred to in clause 3 and therefore considered confidential. Stratus Blue acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. Stratus Blue acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Stratus Blue that may result in serious harm to the Client, Stratus Blue will notify the Client in accordance with the Act.  Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
    • Notwithstanding clause 1, privacy limitations will extend to Stratus Blue in respect of Cookies where the Client utilises Stratus Blue’s website to make enquiries. Stratus Blue agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to Stratus Blue when Stratus Blue sends an email to the Client, so Stratus Blue may collect and review that information (“collectively Personal Information”)

If the Client consents to Stratus Blue’s use of Cookies on Stratus Blue’s website and later wishes to withdraw that consent, the Client may manage and control Stratus Blue’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

  • The Client authorises Stratus Blue or Stratus Blue’s agent to:
    • access, collect, retain and use any information about the Client;
      • including, name, address, D.O.B, occupation, driver’s license details, electronic contact and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Client’s creditworthiness; or
      • for the purpose of marketing products and services to the Client.
    • disclose information about the Client, whether collected by Stratus Blue from the Client directly or obtained by Stratus Blue from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
  • Where the Client is an individual the authorities under clause 3 are authorities or consents for the purposes of the Privacy Act 2020.
  • The Client shall have the right to request (by e-mail) from Stratus Blue, a copy of the Personal Information about the Client retained by Stratus Blue and the right to request that Stratus Blue correct any incorrect Personal Information.
  • Stratus Blue will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
  • The Client can make a privacy complaint by contacting Stratus Blue via e-mail. Stratus Blue will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

22. Compliance with Laws

    • The Client and Stratus Blue shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Services.

23. Dispute Resolution

    • All disputes and differences between the Client and Stratus Blue touching and concerning this Contract shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.

24. Service of Notices

    • Any written notice given under this Contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this Contract;
      • by sending it by registered post to the address of the other party as stated in this Contract;
      • if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
      • if sent by email to the other party’s last known email address.
    • Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

25. Trusts

    • If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Stratus Blue may have notice of the Trust, the Client covenants with Stratus Blue as follows:
      • the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
      • the Client will not without consent in writing of Stratus Blue (Stratus Blue will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
        • the removal, replacement or retirement of the Client as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

26. General

    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • This Contract shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Tauranga District Court.
    • If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of Services by Stratus Blue to the Client.
    • Stratus Blue may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    • The Client cannot licence or assign without the written approval of Stratus Blue.
    • Stratus Blue may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Stratus Blue’s sub-contractors without the authority of Stratus Blue.
    • The Client agrees that Stratus Blue may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Stratus Blue to provide Goods to the Client.
    • Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns, strike, lock-out, storm, terrorism, failure or outage of any telecommunications links or other connections which are beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to Stratus Blue.
    • Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.