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Prodigi Business Terms

Our standard terms under which all products and services are sold

Background

This agreement is entered into as of the date of acceptance (the “Effective Date”) between Prodigi Technology Services Limited and the Client.

  1. Prodigi Technology Services Limited (Prodigi) provides technology related products and services.
  2. The Client wishes to appoint Prodigi to provide products and services, and Prodigi has agreed to accept the appointment.

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Formation of Agreement

  1. This document (the Business Terms) sets out the standard terms for the supply of Products and Services (and any associated Deliverables) by Prodigi to the Client. The latest signed version of which applies to all past, present, and future supply of Products and Services by Prodigi to the Client.
  2. The Products and Services to be provided by Prodigi will be defined in Sales Orders through orders placed by the Client via methods including web form, email, text message, instant message, and phone call.
  3. These Business Terms apply to the Products and Services to the exclusion of any and all other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

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Definitions and Interpretation

Definitions

In the Agreement, unless the context otherwise requires or is specified otherwise:

Assumptions

means any assumptions identified in the Sales Order.

Business Day

means a day other than a Saturday, Sunday or public holiday in Invercargill, New Zealand.

Client

means the client identified in the Sales Order.

Client Pre-existing IP

means any Intellectual Property Rights of the Client which:

  1. exist at the date of the Agreement; or
  2. are not developed under the Agreement;
Client Systems

means the electronic information systems comprising any one or more of hardware, equipment, software, peripherals and communications networks owned, controlled, operated or used by the Client.

Client Tasks

means the tasks that the Client is to carry out.

End Date

means the date specified as such in the Sales Order, or, if no date is specified, the date on which all Services and Deliverables have been provided by Prodigi and all Fees and any other amounts payable by the Client under the Agreement have been paid in full.

Equipment

means any deliverables in the form of hardware or equipment.

Fees

means the specific amounts set out in the Sales Order which are to be payable by the Client to Prodigi for the provision of the Deliverables and Services.

GST

means goods and services tax payable under the Goods and Services Tax Act 1985 (New Zealand).

Intellectual Property Rights

means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide.

PPSA

means the Personal Property Securities Act 1999.

PPSR

means the Personal Property Securities Register established under the PPSA.

Prodigi Pre-existing IP

means any Intellectual Property Rights of Prodigi which:

  1. exist at the date of the Agreement; or
  2. are not developed under the Agreement.
Products

means the technology related products set out in the Sales Order which are to be provided by Prodigi to the Client.

Project

means the project described in the Sales Order and includes the provision of any Services and Deliverables by Prodigi to the Client.

Project Schedule

means the timetable (if any) set out in the Sales Order.

Services

means the technology related services set out in the Sales Order which are to be provided by Prodigi to the Client.

Specific Terms

means the specific terms and conditions (if any) set out in the Sales Order.

Specifications

means the specifications (if any) set out in the Sales Order which are a description of the quality, functionality and performance required of any Deliverable or Services in the Sales Order.

Start Date

means the date specified as such in the Sales Order, or, if no date is specified, the date on which both parties have signed the Sales Order.

Sales Order

means the sales order entered into between Prodigi and the Client which sets out in detail the Products and Services to be supplied by Prodigi to the Client.

Third Party Software

means any third party software identified or stated as such in a Sales Order.

Interpretation

In the Agreement, unless the context requires otherwise:

  1. the words “includes” or “including” are deemed to be followed by the words “without limitation”;
  2. the singular includes the plural and vice versa;
  3. headings are inserted for the sake of convenience of reference only and do not affect the interpretation of the Agreement; and
  4. a person includes any individual, corporation, unincorporated association, government department or municipal authority.

Provision of Deliverables and Services

Prodigi Responsibility

Prodigi will, in accordance with accepted Sales Orders and/or Quotes:

a. provide the Services:

i. using appropriately qualified personnel; and

ii. in accordance with the Project Schedule; and

b. provide the Deliverables:

i. to meet the Specifications; and

ii. in accordance with the Project Schedule,

on the terms and conditions set out in the Agreement.

Client Responsibility

In providing the Services and/or Deliverables, Prodigi may require assistance from the Client and access to the Client’s premises. The Client will:

  1. carry out the Client Tasks;
  2. obtain any licences, authorisations or consents to enable Prodigi to carry out its obligations under the Agreement;
  3. ensure that Prodigi has access to the Client’s premises to provide the Services and/or Deliverables; and
  4. comply with any reasonable instructions specified by Prodigi in respect of the Services and/or Deliverables.

Project Affecting Events

If during a Project:

  1. The Client fails to comply with clause 3.2;
  2. any Assumptions are incorrect,

(each a Project Affecting Event), then:

  1. Prodigi will not be liable for any failure or delay in providing the Services or Deliverables attributable to any Project Affecting Event;
  2. the parties will agree a reasonable extension to the Project Schedule as required so that Prodigi can provide the Services and Deliverables; and
  3. Prodigi may charge, and the Client will pay, any reasonable additional costs resulting from any Project Affecting Event.

Progress Meetings

During the term of the Agreement, the parties will hold progress meetings for the purpose of allowing them to discuss the performance of the Services. These meetings will be held at such times and locations agreed between the parties.

Equipment Warranty

Schedule 1 to these Business Terms applies if the Services and Deliverables involve the installation or supply of any Equipment to the Client. The Client acknowledges and agrees that the clauses in this section of these Business Terms do not apply to Equipment and any warranties for the Equipment are set out in Schedule 1 to these Business Terms.

Insurance

Prodigi will at all times maintain liability insurance. This insurance will cover such claims as may arise under its obligations in the Agreement, during the term of the Agreement, in respect of any act or omission by Prodigi relating to its obligations under the Agreement. Upon the Client’s request, Prodigi will provide a certificate of insurance evidencing such coverage.

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Pricing and Payment Terms

Invoices

Prodigi will issue invoices to the Client for the Fees, any agreed disbursements, and any other agreed costs or charges under the Sales Order.

CPI Adjustment

On renewal of this agreement (as in Term and Termination) or every 12 months (whichever is later), the rates covered by this agreement may be increased based on the New Zealand CPI inflation rate as measured in the latest quarter and posted on the stats.govt.nz website.

Supplier Price Increase

In the event of a supplier price increase, Prodigi may increase prices by the same percentage with 30 days notice. Supplier prices increases due to currency fluctuations will be applied automatically.

Related Expenses

The client will reimburse Prodigi for any expenses incurred by Prodigi in connection with the Services (including but not limited to travel and subscription fees). If a Sales Order so provides, Prodigi must provide the Client a receipt for any expenses in excess of the threshold amount stated in the applicable Sales Order.

Invoice Payment

The Client will pay each invoice in the manner and at the times specified in the Sales Order, or if not specified, by the 20th of the month following the month of the invoice.

Invoice Dispute

If The Client disputes any invoice, it will give Prodigi notice of such dispute but will otherwise pay the undisputed part of the invoice. Any disputed amount will be resolved as in Disputes. If no notice of dispute is delivered by the due date of the invoice, the invoice is deemed as accepted by the Client.

Client Failure to Pay

If the Client fails to pay any amount due, Prodigi may without prejudice to its other rights or remedies under the Agreement:

  1. charge interest on the amount owing from the due date until the date of actual payment at 5% per annum over the base overdraft rate charged by Prodigi’s bankers from time to time plus a $15 admin fee each month;
  2. suspend the provision of the Services and Deliverables, all without liability to the Client; and/or
  3. require the Client to indemnify, and the the Client will indemnify Prodigi against all costs, expenses and damages incurred by Prodigi (including debt collection fees, and solicitors’ fees on a client/solicitor basis) in recovering from the Client any amounts unpaid to Prodigi under the Agreement.

Currency

All amounts payable under the Agreement are to be paid in New Zealand Dollars

Taxes, duties etc

All Fees and any other amounts payable under the Agreement do not include GST or any other taxes, duties or charges levied in New Zealand or overseas in connection with the Agreement.

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Acceptance Tests

Acceptance Tests Stated

  1. If any Deliverables to be provided under a Sales Order are stated in that Sales Order to undergo any Acceptance Tests, those Acceptance Tests will be conducted in accordance with the process set out in the relevant Sales Order.
  2. If a Sales Order indicates (or the parties otherwise agree) that Third Party Software included as a Deliverable will undergo Acceptance Testing, such testing will only be in respect of the integration of that Third Party Software with the other parts of the Deliverables. The Client agrees that this clause grants it no rights to Acceptance Test the Third Party Software itself.

Acceptance Tests Unstated

Where Deliverables are provided under a Sales Order and are not stated in that Sales Order to undergo any Acceptance Tests, a Deliverable will be deemed to be accepted by the Client:

  1. when the Client gives notice to Prodigi of its acceptance of the Deliverable; or
  2. if the Client fails to notify Prodigi of its acceptance of the Deliverable within 5 Business Days after delivery, whichever occurs first. The Client will not reject a Deliverable unless it can show that the Deliverable does not materially meet the Specifications. Where the Client rejects a Deliverable, it will set out the basis for that rejection to Prodigi.

Client Rejection

If the Deliverables are rejected by the Client, Prodigi will correct any deficiencies in such Deliverables so that the Deliverables materially conform to the Specifications.

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Intellectual Property Rights

This section survives termination of the Agreement.

Client IP

Subject to the clause directly following this one, Prodigi acknowledges and agrees that all Intellectual Property Rights in the Deliverables (excluding the Prodigi Pre-existing IP and any Third Party Software), will vest absolutely in the Client on payment in full by the Client of all invoices issued relating to the provision of those Deliverables (and related Services).

Prodigi Pre-existing IP

Prodigi may include Prodigi Pre-existing IP in the Deliverables. The Client acknowledges that:

  1. any modifications or enhancements to the Prodigi Pre-existing IP will be deemed to form part of the Prodigi Pre-existing IP; and
  2. the Prodigi Pre-existing IP belongs to Prodigi.
  3. For the purposes of this clause, Prodigi grants The Client a non-exclusive, royalty free right to use the Prodigi Pre-existing IP in the form in which it is included in the Deliverables. For the avoidance of doubt, the Client will not use Prodigi Pre-existing IP independently of the Deliverables in which it is included.

Client Pre-existing IP

Client may provide the Client Pre-existing IP to Prodigi for the purpose of providing the Deliverables and/or Services. Prodigi acknowledges that:

  1. any modifications or enhancements to the Client Pre-existing IP will be deemed to form part of the Client Pre-existing IP; and
  2. the Client Pre-existing IP belongs to Client.
  3. For the purposes of this clause, the Client grants Prodigi a non-exclusive, royalty free right to use, copy and modify the Client Pre-existing IP to perform Prodigi’s obligations under the Agreement.

Generic Technical Information & Residuals

The Client acknowledges and agrees that Prodigi may use for any purpose any of the Deliverables which by themselves provide generic technical information not unique to the Client’s business. Prodigi may also use for any purpose any Residuals resulting from the provision of the Deliverables under the Agreement. For the purposes of the Agreement, “Residuals” means any technical information related to computer software, technology or design which may be retained by persons involved in the performance of the Agreement in non-tangible form, including know-how, ideas, concepts and techniques.

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Confidentiality

This section survives termination of the Agreement.

Non-Disclosure

Each party will treat as confidential all information obtained from the other pursuant to the Agreement. Neither party will divulge such information to any persons (except to their employees (for whom that party will be responsible) and then only to those employees who need to know) without the other party’s prior written consent.

Confidential Information

In relation to either party, confidential information means any information relating to the business or affairs of that party and includes, without limitation, its designs, drawings, manufacturing know how, object code, source code, planned modifications to hardware or software, planned enhancements to hardware or software, product knowledge, quality standards, research and development, unpublished specifications, technical information, pricing, manipulated data, business plans, business processes, methodologies, techniques, general know-how, costs and margins, client lists, financial data, internal price information, market research, marketing plans, sales forecasts and trade secrets.

Exclusions

The above two clauses do not extend to information which:

  1. can be established by written records to be already known to the recipient at the time of disclosure; or
  2. which is in or enters the public domain through no fault of the recipient.

Legally Mandated Disclosure

If the recipient of any confidential information is required by any applicable law, court or authority to disclose such confidential information to any person, it will:

  1. give the disclosing party prompt written notice of the disclosure, where practicable before it occurs, so that the disclosing party has sufficient opportunity to prevent the disclosure through appropriate legal means;
  2. disclose only that part of the confidential information which the recipient’s legal advisers consider is legally required to be disclosed; and
  3. use all reasonable endeavours to obtain an assurance that the confidential information disclosed will be treated confidentially by the recipient.

Return of Confidential Information

Each party will on demand and, in any event, on termination of the Agreement, deliver to the other party all confidential information and any other document supplied by or obtained from the other party.

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Term and Termination

Initial Term

The term of the Agreement will commence on the Start Date and continues, subject to the clause directly below this one, until the End Date (Initial Term), unless terminated earlier in accordance with the provisions of the Agreement.

Agreement Renewal

Unless otherwise agreed in the applicable Sales Order, the Agreement will, at the end of the Initial Term, automatically renew for subsequent periods of the same length as the Initial Term (each period a Renewal Period) unless either party gives the other party at least 60 days’ (or a number of days equal to length of a term/renewal period if it is shorter than 60 days) prior written notice of its intention to terminate the Agreement at the end of the Initial Term or the then-current Renewal Period.

Termination

Either party may terminate the Agreement:

  1. on 30 days’ notice if the other party is in material breach of the Agreement and fails to remedy such breach within 10 days of receiving notice from the other party specifying the breach and requiring it to be remedied; or
  2. immediately on notice if the other party goes into liquidation or has a receiver or statutory manager appointed of any of its assets, becomes insolvent or makes any arrangement with creditors.

Prodigi may terminate the Agreement for convenience on 90 days’ prior written notice to the Client.

Early Termination

If, for whatever reason, the Agreement is terminated prior to the End Date, the Client will, in addition to the amounts payable under the clause below this one, pay to Prodigi:

  1. an early termination fee equal to the total amount of fees that would have been payable during the remaining term of the Agreement; and
  2. any amounts incurred by Prodigi on behalf of the Client and owing to any third party.

Payment Due at Termination

  1. The Client will immediately pay Prodigi for all work-in-progress that is unbilled as at the time of termination and any invoices that remain unpaid; and
  2. to the extent necessary, each party (the Owner) may, at times to be agreed with the other party, enter the other party’s premises or access the other party’s equipment on the premises of third parties and recover any property (including equipment and materials) which belongs to the Owner. Each party irrevocably licenses, and undertakes to obtain the permission of third parties for, the Owner and any of its employees and agents to enter any such premises for that purpose at the times agreed between the parties.

Other Clauses at Termination

Termination of the Agreement will not affect the provisions of the Agreement which are intended to continue, or should reasonably continue, after termination (whether expressly stated so or not). Termination will not affect any claim by either party against the other party arising out of any breach or failure under the Agreement prior to termination.

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Change Management Procedures

Requesting Changes

Either party may request changes to the level, scope or timing of any Services or Deliverables to be supplied pursuant to an Agreement (a Change). Where either:

  1. the Client requests a Change; or
  2. Prodigi recommends a Change,

Prodigi will propose an amendment to the relevant Agreement in accordance with the remaining provisions of this clause (a Change Submission) except where the parties agree that any change to the level, scope or timing of any Services or Deliverables can be agreed between the parties in writing without following the process set out in this clause.

Change Submission

Where the Client requests a Change, Prodigi will (unless otherwise agreed) deliver a Change Submission to the Client within 10 Business Days of receiving a written request for a Change from the Client. Prodigi may charge the Client for the preparation of a Change Submission at the Additional Services Rates, provided Prodigi notifies the Client of such charges prior to the preparation of the Change Submission.

Prodigi Initiated Change

Where Prodigi believes that a Change would be appropriate, Prodigi will notify the Client of this recommendation and prepare a Change Submission.

Change Process

For each Change Submission submitted, Prodigi and the Client will evaluate the Change Submission and may:

  1. approve the Change Submission, in which case the Client will sign the Change Submission and the relevant Agreement will be amended in accordance with the terms of the Change Submission; or
  2. reject the Change Submission, in which case the relevant Services Agreement will continue in force unchanged.

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Warranties and Limitation of Liability

Warranty

Prodigi warrants to the Client that:

  1. to the best of its knowledge and belief, the supply of any Deliverable or Services to the Client will not infringe the copyright of any third party; and
  2. it will provide the Services in a proper, competent and professional manner.

Warranty Breach

If a claim for a breach of the warranty above is brought against Prodigi, Prodigi will, at its election, either:

  1. ensure or procure a continuing lawful right for the Client to use the Deliverable or Services (or component thereof);
  2. replace or modify the Deliverable or re-perform the Services (as the case may be) with equivalent functionality and performance which complies with the Specifications but which does not infringe those rights; or
  3. if the remedies in paragraphs (a) or (b) are not commercially feasible, Prodigi may terminate the Agreement and refund any Fees paid by the Client in respect of the alleged or actual infringing Deliverable or Services.

This clause sets out the Client’s sole and exclusive remedy in respect of any claim of copyright infringement.

Indemnification

The Client will indemnify Prodigi against all costs, expenses and damages incurred through any claims against Prodigi resulting from:

  1. the use of the Services or Deliverables by the Client;
  2. the Client’s use of any Third Party Software; and
  3. Prodigi following the instructions of the Client in relation to the provision of the Services and Deliverables.

Liability

Prodigi will not be liable to the Client for loss of profits, loss or revenue, loss of data, or any indirect, consequential or special loss or damage suffered or incurred by the Client arising out of or in connection with the Agreement.

Limitation of Liability

Prodigi’s liability to the Client arising out of all claims for loss or damage under the Agreement will not exceed in aggregate an amount equal to the Fees actually paid by the Client to Prodigi in the three months prior to the time the liability arises.

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Sub-contracting

Prodigi may sub-contract any of its obligations under the Agreement. Prodigi will inform the Client of any work that is sub-contracted out. The Client’s prior written consent is not required for sub-contracting. However, if Prodigi uses a sub-contractor in respect of the Agreement, Prodigi is not relieved of any of its liabilities or obligations under the Agreement.

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Disputes

Limitation of Court Proceedings

If a dispute arises out of or relates to the Agreement (Dispute), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.

Dispute Notice

A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute (a Dispute Notice).

Dispute Notice Response

On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.

Mediation

If, despite the efforts made pursuant to the clause above, the Dispute is not resolved within 20 Business Days of the Dispute Notice being given (or within such longer period agreed as the parties may agree in writing) any party may, by giving written notice to the other party, require the Dispute to be submitted to mediation by a mediator. The mediator will be appointed by the parties or, if the parties cannot agree on a mediator within 10 Business Days of the written notice requiring mediation, a mediator will be appointed, on application of any party, by the President of the New Zealand Law Society within a further five Business Days. The mediation will be conducted in Invercargill, New Zealand and each party must attend the mediation, will bear its own costs of the mediation and will contribute equally to the cost of the mediator.

Arbitration

If, within 40 Business Days of the notice requiring the Dispute to be submitted to mediation under clause 12.4, the parties are unable to reach agreed settlement at a mediation or the parties have not attended a mediation (whether due to one party failing to attend or otherwise), then either party may, by giving written notice to the other party, require the Dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the parties or, failing agreement within 5 Business Days of the notice requiring arbitration, by the President of the New Zealand Law Society on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.

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Force Majeure

  1. Prodigi will not be responsible or liable for any delay or failure in the performance of its obligations under the Agreement if such delay or failure is due to circumstances outside its reasonable control including, acts of God, natural disaster, riot, terrorism, pandemics, epidemics, malicious damage, fire, Government orders or any related effects of COVID-19 (each an Event of Force Majeure). This clause 13.1 does not apply to any obligation to pay money for liabilities incurred prior to any such extraordinary circumstances occurring.
  2. If any Event of Force Majeure continues for a period of 30 days or more, then The Client will be entitled to terminate the Agreement only by giving the other party notice in writing. Such termination will be without prejudice to the accrued rights and remedies of either party.

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General

Entire Agreement

The Agreement (including the Sales Order) constitutes the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter.

Extra Material

Any proposal documents, descriptive matter or advertising issued by Prodigi and any descriptions of the Services or Deliverables contained in Prodigi’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Deliverables described in them. They do not form part of the Agreement or have any contractual force.

No Partnership

The Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.

Invalid or Unenforceable Provisions

If any part or a provision of the Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of the Agreement will continue to operate.

Waiver of Provisions

A provision or a right under the Agreement may not be waived except in writing signed by the party granting the waiver.

Exercise of right, power or remdy

A party may exercise a right, power or remedy under the Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under the Agreement does not prevent a further exercise of that or of any other right, power or remedy.

Variation

The Agreement may not be varied except by agreement in writing signed by the parties.

Assignment

Client will not assign, transfer or otherwise deal with the Agreement or any of its rights or obligations under the Agreement, whether in whole or in part, without the prior written consent of Prodigi.

Notices

Notices and other communications under the Agreement are to be given in writing by email, facsimile, personal delivery or by post and must be:

  1. sent to the correct email or physical address designated in writing by each party for that purpose from time to time; and
  2. marked for the attention of the designated person or office holder (if any).

A notice or communication in relation to the Agreement will be deemed to be received:

  1. in the case of a letter, on the third Business Day after posting;
  2. in the case of email, on the Business Day on which the email is successfully delivered; and
  3. in the case of personal delivery, when delivered.

Governing Laws

The Agreement will be governed by and construed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.

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Schedule 1 – Equipment Supply and Installation Terms

Where the Client requests Equipment, or a Deliverable includes the supply or installation of Equipment as part of the Services, and Prodigi agrees to supply such Equipment to Client, in any Sales Order, the terms of this Schedule will apply.

Provision of Equipment

Prodigi will:

  1. supply the Equipment to the Client that materially meets any Specifications related to the Equipment; and
  2. use reasonable endeavours to seek warranties from manufacturers and other third parties from whom Prodigi sources any Equipment (or component of the Equipment) that will allow Prodigi to comply with its obligations under this Agreement in relation to the provision of the Equipment.

Title and Risk

Title

Where the Equipment is purchased by the Client, unless the applicable Sales Order specifies otherwise:

a. legal and equitable ownership of all Equipment supplied by Prodigi is retained by Prodigi until full payment is made by the Client of all amounts the Client owes to Prodigi for the relevant Equipment; and

b. where title has not passed to the Client:

i. and the Client is in possession of the Equipment, the Client will hold that Equipment on trust for Prodigi and will store the Equipment in such a manner as to make it readily identifiable as belonging to Prodigi; and

ii. the Client must not sell, dispose of, or otherwise part with possession of, the Equipment, except for in the ordinary course of Client’s business. If any Equipment is sold by the Client, then all proceeds of sale will be the property of Prodigi and will also be retained on trust by the Client for Prodigi. This authority to deal with the Equipment is revoked immediately in the event of termination by Prodigi.

Where Equipment is leased to the Client irrespective of any period of credit, unless the applicable Sales Order specifies otherwise:

  1. legal and equitable ownership of all Equipment supplied by Prodigi will remain with Prodigi for the entire duration of the relevant Services Agreement; and
  2. the Client acknowledges that it is only a bailee of the Equipment, in accordance with this Agreement.
Risk

Unless the applicable Sales Order specifies otherwise, and irrespective of whether the Equipment is purchased by, or leased to, the Client, risk in any Equipment supplied by Prodigi will pass to the Client when that Equipment is delivered to the Client’s site.

The Client acknowledges and agrees that:

  1. this Agreement constitutes a security agreement for the purposes of section 36 of the PPSA which is registrable on the PPSR; and
  2. this clause creates a security interest in all present and after acquired Equipment and any proceeds supplied by Prodigi to (or for the account of) the Client as security for the Client’s obligations to Prodigi.

The Client will:

  1. sign any further documents and provide any further information, such information to be complete, accurate and up-to-date in all respects, which Prodigi may reasonably require to register a financing statement or financing change statement on the PPSR and ensure that any registration remains fully effective;
  2. indemnify, and upon demand reimburse, Prodigi for all expenses incurred in registering a financing statement or financing change statement on the PPSR or discharging any financing statement;
  3. not register a financing change statement or a change demand on the PPSR without Prodigi’s prior written consent;
  4. give Prodigi not less than 30 days’ prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s contact details; and
  5. waive the Client’s right to receive a verification statement in accordance with section 148 of the PPSA.

The parties agree that sections 114(1)(a), 120(1), 122, 133 and 134 of the PPSA will not apply on the enforcement by Prodigi of any Security Interest created or provided for by this Agreement. The Client waives any rights the Client may have under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA on such enforcement.

Nothing in this Agreement will be construed as:

  1. an agreement to subordinate a Security Interest or charge under this Agreement in favour of any person; or
  2. a consent by Prodigi to any other Security Interest attaching to (as “attach” is used in the context of the PPSA), or any other security subsisting over, any Equipment.

Return of Equipment

  1. Where the Equipment is leased to the Client, Client is responsible for the safe custody of the Equipment and will be liable for any loss, theft, physical damage to or destruction of the Equipment however it has been caused.
  2. Within 10 days of any expiration or termination of the relevant Services Agreement or this Agreement, Client will return all leased Equipment to Prodigi, at the Client’s expense, in the same condition in which they were provided, normal wear and tear excepted.
  3. If any Equipment on lease is lost or damaged, then the Client will be required to reimburse Prodigi for the reasonable replacement cost as specified by Prodigi at that time.

Warranties

Subject to the clause directly below, Prodigi warrants that (without limiting any other warranties applying to the Deliverable):

  1. the Equipment will be new (unless otherwise agreed between the parties), of satisfactory quality, and free from all material defects in materials, workmanship, and installation for a period of [6] months from the date of delivery;
  2. it will pass on the benefit of any manufacturer warranty in respect of the Equipment to the Client; and
  3. where purchased, it will supply the Equipment free from all encumbrances.

If the Client wishes to claim under the warranty set out in the clause directly above, it will, if requested by Prodigi:

  1. return any faulty Equipment to Prodigi at the Client’s cost; and/or
  2. reimburse all reasonable travel, accommodation and related expenses incurred by Prodigi to the extent Prodigi rectifies errors, deficiencies or other defects at the Client’s site.