Terms of Trade

Definitions

1. TE”, “We” or “Our” means Treshna Enterprises Limited, its successors and assigns or any person acting on behalf of and with the authority of Treshna Enterprises Limited.
2. “Client” or “You” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation or any other document provided by TE to the Client. Where more than one Client has entered into this agreement, the liability of the Clients under it shall be joint and several. For the avoidance of doubt, once a Client introduces an individual to TE as the Client’s authorised representative, that person shall continue to have the full authority of the Client unless and until TE is notified in writing otherwise by the Client.
3. “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Client.
4. “Goods” shall mean all goods (including software) supplied by TE to the Client in the course of carrying out the Services.
5. “Services” shall mean all services supplied by TE through the Software to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined in this Agreement).
6. “Software” shall mean the software provided by TE known as “Gym Master”.
7. “Price” shall mean the price payable for the Goods and Services as agreed between TE and the Client in accordance with this Agreement. Goods and Services Tax (GST) and any other applicable taxes and duties (including customs clearance fees or import taxes) shall be added to the Price except when they are expressly included in the Price. The current rate of GST where payable is 15%.

Acceptance

1. Acceptance by the Client the Services, will (not with standing any statement to the contrary) constitute acceptance of these Terms and Conditions.

Services

TE will supply the Goods and carry out the following Services for the Client:-

1. Provide the Client with remote access to the Software.
2. Provide administration, remote training (where applicable), maintenance and support services in relation to the Software.
3. Provide storage of Client data within the Software.

Payment

At our sole discretion the Price payable for the Goods and Services shall be as indicated on invoices provided by TE to the Client.

1. SMS’s sent via the Software incur a charge per message (160 characters long (in English) excluding the opt out text). Invoices are raised at the end of the month and detail the full usage. Discounted rates are available dependent on the number of SMS* messages sent per month.

   If any additional Services are requested, or any variations become necessary due to any event outside of our control, or in the event of increases in the cost of labour of materials which are beyond our control, we reserve the right to charge for the variations in addition to the Price payable.

   A non-refundable deposit may be required at our sole discretion. Payment will be charged to the Client’s credit card on the 20th of each month or can be made by bank transferif agreed between the parties. The Client agrees to provide TE with its credit card details immediately upon signing of this Agreement. The Services will be charged one month in advance and then monthly in arrears.

   Unless otherwise agreed, payment shall be made prior to Goods being shipped.

   The Client must not withhold payment or make any deductions of any nature whether by way of set off (legal, equitable or otherwise), counterclaim or otherwise from any amount the Client owes TE under this Agreement.

Responsibilities of TE

1. TE will provide the Services to you with reasonable care, skill and diligence.
2. TE will use its best endeavours to keep you informed about the Services as they are introduced and improved.
3. Subject to clause 5.5 below, TE will make all reasonable efforts to ensure that the Client receives continual and uninterrupted Services during the term of this Agreement.
4. TE will use its best endeavours to promote the Services to encourage users to use the Software.
5. In order to maintain and repair any technical or performance issues with the Software, TE reserves the right to suspend the provision of the Services for a period (“maintenance period”) in order to undertake this work. If a large outage is planned, TE will use its best endeavours to give the Client 24 hours notice prior to the maintenance period.

Responsibilities of the Client

The Client will be responsible for:-

1. Making payment to TE in accordance with the terms of this Agreement.
2. Provide access to Client’s data and from time to time providing TE with complete and accurate product information and updating when necessary to enable provision of the Services.
3. When TE is providing custom changes or software to the Client, ensuring that the specifications provided to TE (in writing) are in sufficient detail to satisfy TE’s requirements. TE shall not accept any liability for the supply of Services contrary to the Client’s intentions due to insufficient or inadequate provision of detailed specifications by the Client.
4. Promptly comply with any guidelines, directions or requests given by us in relation to the Software.
5. Keep the login and password to the Software confidential.
6. Not permit or allow any interference with the proper working of the Software or take any action that places an unreasonable or large load on TE infrastructure.
7. Not use the Services or Software for any purpose other than that authorised under this Agreement.

Security and Risk

1. Risk in any of the Goods supplied to the Client will pass to the Client on delivery. Delivery is deemed to be effected upon delivery of the Goods to the Client’s premises or upon collection of the Goods by or on behalf of the Client.

Software Warranties

1. Unless the Client has rights under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited, there are no warranties express or implied. This includes implied warranties as to merchantability and fitness for a particular purpose.
2. All third-party software is provided at the Client’s own risk and is not in any way warranted by TE, nor shall TE be in any way responsible for the implementation or effects of any “patches”, “updates”, or “fixes” offered by the manufacturers of any third-party software. The Client shall indemnify TE against all liability (including, but not limited to, any costs, damages or losses) that may occur as a result of any third-party software or third party instal of hardware.
3. Subject to the terms of this Agreement, TE warrants that if any defect in relation to the Goods or Services becomes apparent, and is notified in writing to TE:-
   1. In relation to Goods, within twelve (12) months of the date the Goods are delivered to the Client (time being of the essence); and
   2. In relation to Services, within sixty (60) days of the Services commencing (time being of the essence); then TE will replace or remedy the defect in its sole discretion.
4. For Goods not manufactured by TE, the warranty period shall be the current warranty provided by the manufacturer of the Goods (regardless of whether this is less than twelve (12) months).
5. TE’s warranty will not apply in the following circumstances:-
   1. Where any defect or damage is caused, or partly caused, by the Client failing to properly maintain any Goods, follow any instructions or guidelines provided by TE; or use of any Goods otherwise than for the purposes authorised under this Agreement.
   2. By damage caused by fair wear and tear, any accident, or act of God.
   3. The continued use by the Client of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent user.
   4. If the Client or a third party repairs or modifies the Goods or Software without TE’s consent.
   5. Due to incorrectly wired equipment that results in damage to the Goods.
6. TE shall not be liable to compensate the Client for any damage or losses caused due to any defect in the Goods or Services, or a delay by TE in either replacing or remedying the defect.

Warranties

1. TE and the Client warrant that, to the best of their knowledge, all Services that are to be undertaken by TE will not breach any agreement or third-party interest in respect of the Software or Goods being serviced.

   TE will take all reasonable care to back-up any data provided by the Client during the course of the Services, however will not be held liable for any loss, corruption or deletion of files or data (including, but not limited to software programmes) caused as a result of any error or omission of the Client or due to any fault with third-party software. The Client acknowledges and accepts full responsibility for the Client’s own software and data and any third-party software.

Regulatory Requirements

1. For the avoidance of doubt, local regulatory requirements for entry barriers and automated access including, but not limited to, manual exit options, emergency exit buttons, and fire exits (“regulatory requirements”) are the responsibility of the Client. TE shall not be held liable for any loss or damage caused by a failure of the Client to comply with regulatory requirements and the Client will indemnify TE accordingly.

Liability for Costs

1. Any expenses, costs or disbursements, including debt collection agency fees and legal fees (on a solicitor/client basis), incurred by TE in registering any security for the Client ’s obligations, and/or recovery or attempted recovery of any outstanding monies and/or the enforcement of these Terms and Conditions shall be recoverable from the Client.

Confidentiality

1. TE will hold in confidence all information concerning the Client and its employees that we acquire while acting for you. TE will not disclose any of this information to any other person except to the extent required by law or using such information anonymously for the sole purpose of analysis to better improve the Services and understanding trends in the industry.
2. Both parties agree that, unless they have the prior written consent of the other, they will not use or disclose to any third party (other than for the purpose of performing this Agreement) the terms and conditions of this Agreement or any information confidential to the other party. The obligations of this clause shall survive termination or cancellation of this Agreement.
3. The Client agrees to protect all authorisation details, including but not limited to usernames and passwords and agrees that those details shall not be written or stored in any manner which could result in their unauthorised disclosure.
4. The Client accepts that TE reserves the right to store data onsite where necessary.
5. TE will, upon request, provide all the data stored by TE in relation to the Client’s members to the Client in TE’s preferred electronic format.

Default

1. At TE’s discretion, 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 TE’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. Without prejudice to TE’s other remedies at law TE shall be entitled to suspend or cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TE shall, whether or not due for payment, become immediately payable in the event that any money payable to TE becomes overdue, or in TE’s opinion the Client will be unable to meet its payments as they fall due.

Termination

1. TE may terminate this Agreement only for good cause and after giving you reasonable notice specifying the grounds for termination.
2. TE reserves the right to suspend or immediately terminate this Agreement if we, in our sole discretion, determine that the Client’s use of the Services is unlawful or improper.
3. Either you or us may terminate this Agreement by giving thirty (30) days notice in writing to the other.
4. Either party may terminate this Agreement immediately by written notice if either of us fails to remedy a material breach of this Agreement within thirty (30) days of receiving written notice specifying the breach. Either of us may also terminate this Agreement following liquidation or insolvency of the other.

Exclusion of Liability

1. In no event shall TE be liable to the Client for damages resulting from, or in relation to, any failure or delay of TE to provide Goods or Services under this Agreement. Such a failure or delay shall not constitute a default under this Agreement.
2. TE shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense suffered by the Client arising out of a breach by TE of this Agreement. In the event of any breach of this Agreement by TE the remedies available to the Client shall be limited to damages which under no circumstances shall exceed the price of the Goods or Services.
3. The Client acknowledges that any advice or recommendations provided by TE are on the basis of TE’s industry knowledge and experience only and shall not be deemed to be specialist advice.
4. The Client hereby disclaims any right to rescind, cancel this Agreement, or to sue for damages arising out of any inadvertent misrepresentation made to the Client by TE and the Client acknowledges that this Agreement has been entered into solely upon the Client’s own skill and judgment.

Intellectual Property

1. The Client acknowledges that in respect of the Software, together with any custom applications, computer software and documentation designed for the Client by TE, TE retains ownership of the Software and any associated documentation and copyright, but grants the Client a non-exclusive and non-transferable licence for its use (solely in relation to the operation of the Client’s own business). The Client shall not use or supply the same in any way whatsoever, other than in accordance with this Agreement, without first obtaining the written consent of TE.
2. The Client agrees to use any third-party software supplied by TE strictly in compliance with the terms of the licence under which it is supplied.
3. The Client further agrees that they shall not:-
   1. use in any way, or rely on the Software for any purpose other than for what is intended by this Agreement;
   2. copy, reproduce, translate, adapt, merge, or create any derivative work based on the Software;
   3. reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the Software or assist another party to do the same;
   4. sell, market, network, transfer, lease, licence, sub-licence, rent, lend, or otherwise distribute, the Software in any way whatsoever;
   5. use the Software to commit a crime (including, but not limited to, sending spam); and the Client agrees to indemnify TE against any action taken by a third party against TE in respect of any of the above.
4. The Client warrants that all designs or instructions provided to TE will not cause TE to infringe any patent, registered design, or trademark in the execution of the Client’s order and the Client agrees to indemnify TE against any action taken by a third party against TE in respect of any such infringement.

Fair Use Policy

1. TE may apply its Fair Use Policy where in our reasonable opinion your usage of our Services is excessive and/or unreasonable by reference to average customer profiles and estimated customer usage of our Services.
2. If your usage of our Services materially exceeds estimated use patterns over any month, or is inconsistent with normal usage patterns, then we will contact you and require that you stop or alter your usage of the Services accordingly. your usage will be excessive and/or unreasonable.
3. If your excessive or unreasonable usage continues after receipt of the above request, we may without further notice, apply charges to your account for the excessive and/or unreasonable element of your usage; suspend, modify or restrict your use of the Services or withdraw your access to the Services.

Privacy Act 2020

1. The Client authorises TE or TE’s agent to
   1. access, collect, retain and use any information about the Client for the purpose of marketing products and services to the Client.
2. Where the Client is an individual the authorities under this clause are authorities or consents for the purposes of the Privacy Act 2020.
3. You shall have the right to ask for a copy of any personal information TE holds about you, and to ask for it to be corrected if you think it is wrong.  If you’d like to ask for a copy of your information, or to have it corrected, please contact TE.
4. In accordance with the Privacy Act 2020, in the unlikely event that a privacy breach causing (or likely to cause) serious harm should occur, TE will notify the Office of the Privacy Commissioner and the affected Client as soon as possible.

Dispute Resolution

1. In the event of any dispute arising between the parties in respect of or in connection with this Agreement (including the validity, breach or termination of it), the parties shall endeavour to resolve the dispute in good faith but failing that, and without prejudice to any other right or entitlement that either party may have, the dispute shall be resolved by agreement between them using informal dispute resolution techniques such as negotiation, mediation, independent expert approval or any other alternative dispute resolution technique. The rules governing any such technique adopted shall be as agreed between the parties or as selected by LEADR (Lawyers Engaged in Alternative Dispute Resolution - New Zealand Chapter).

Electronic Transactions Act 2002

1. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

Assignment

1. The Client may transfer its rights and responsibilities under this Agreement to a third party provided that TE has given our written consent to the assignment and have received the assignee’s written agreement to be bound by the terms and conditions of this Agreement.
2. The Client agrees that there is no restriction on us assigning or transferring our rights and obligations under this Agreement to a related company.

Severance

1. If any clause (or part of a clause) of this Agreement is determined by a Court or other relevant Authority to be invalid, unenforceable or illegal, all other clauses herein shall remain in force. If any invalid, unenforceable or illegal clause would be valid, enforceable or legal if some part of it were deleted, the clause shall apply with whatever amendment is necessary to give effect to the commercial intention of the parties.

Entire Contract

1. TE and the Client agree that these terms and conditions express the complete agreement between them. There has been no representation made by TE to the Client except as expressly set out in this document. This Agreement is subject to change by written notice TE to the Client from time to time

Consumer Guarantees Act

1. Where supply is for business purposes within the meaning of the Consumer Guarantees Act 1993, pursuant to Sections 2 and 43 the provisions of that Act will not apply to this Agreement.

Governing Law

1. TE and the Client irrevocably submits themselves to the exclusive jurisdiction of the New Zealand courts in respect of any proceedings arising out of or relating to these terms and conditions.