Terms of Service

Definitions

1. In this agreement, unless the context otherwise requires: Additional Fees means any fees and charges imposed by the Supplier for Additional Services;
   
2. Additional Services means services that are additional or different to the scope or nature of the Services set out in the Quote;
   
3. Customer Material has the meaning set out in clause 7.3;
   
4. Confidential Information means all technical,business, financial, or other information, in any form, disclosed or otherwise made available by one party to another party in connection with the activities contemplated by this document that is either marked confidential or, considering the nature of the information and the circumstances of disclosure,could reasonably be expected to be confidential in nature, and includes the terms of this document and the content of any pre-contractual negotiations; andexcludes information that is within the public domain, other than as a result of authorised disclosure;
   
5. Data means all data, content, and information(including personal information) owned, held, used, or created by the Customeror on the Customer’s behalf that is stored using, or inputted into, theServices;
   
6. Fees means the amounts set out in the Quote;
   
7. Force Majeure means an event or circumstance beyond the reasonable control of the affected party;
   
8. GST means goods and services tax levied under the Goods and Services Tax Act 1985 in New Zealand or under the A New Tax System (Goods and Services Tax) Act 1999 in Australia, as the case may be.
   
9. Intellectual Property means trademarks, rights in domain names, copyright, patents, registered designs, rights in computer software, databases and lists, rights in inventions, Confidential Information,know-how and trade secrets, operating manuals, quality manuals, and all other registered or unregistered rights anywhere in the world resulting from intellectual activity, including applications for the grant of such rights, allforms of protection having equivalent or similar effect, and all associated goodwill, powers, and benefits and Intellectual Property Rights has a corresponding meaning;
   
10. Quote means the Quote specifying the Services to be provided by the Supplier;
    
11. Services means the services to be provided by the Supplier pursuant to this agreement in accordance with the Quote;
    
12. Underlying Systems means the software, IT solutions, systems, and networks used to provide the Services, including any third-party solutions, systems, and networks;
    
13. Working Day has the meaning given in the Interpretation Act 1999.
    

Interpretation

1. Clauses and Schedules:  References to clauses, sub-clauses, and schedules (if any) are to clauses and sub-clauses of, and schedules to, this agreement.
   
2. Defined Expressions: Expressions defined in the main body of this agreement have the defined meaning in the whole of this deed including the background and the schedules (if any).
   
3. Headings: Clause and other headings are for ease of reference only and do not form any part of the context for, or affect, the interpretation of this agreement.
   
4. Signature: The requirement for a signature under or in connection with this agreement may be satisfied by means of an electronic signature.
   
5. Parties: References to parties are references to parties to this agreement and their permitted assigns.
   
6. Plural and Singular: Singular words include the plural and vice versa.
   
7. Negative Obligations: Any obligation not to do anything includes an obligation not to suffer, permit, or cause that thing tobe done.
   
8. No Limitation: References to anything of a particular nature either before or after a general statement do not limit the general statement unless the context requires.
   
9. Grammatical Variations:  Where a word or phrase is defined in this agreement,other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
   
10. Agreement: The word agreement includes an undertaking or other binding arrangement or understanding, whether or not recorded in writing.
    
11. Writing: A reference to something being written or in writing includes that thing being: represented or reproduced in any mode in a visible form (including electronically); or communicated in any other manner approved by the parties from time to time.
    
12. Persons: References to persons include references to individuals, companies, corporations, firms, partnerships, joint ventures, associations, organisations, trusts, states or agencies of state,government departments, state owned enterprises, and municipal authorities in each case whether or not having separate legal personality.
    
13. Statutes and Regulations: References to any statutory provision include any statutory provision which amends or replaces it and any subordinate legislation made under it.
    

Notices

1. Any notice or other document given under this agreement will be deemed to have been validly given: in the case of delivery by hand, when received; or if emailed, one hour after the email is sent to the recipient’s last known email address,unless a return email is received by the sender within that one-hour period stating that the addressee’s email address is wrong or that the message cannot be delivered, provided that any notice received after 5 pm on a Working Day or on any day that is not a Working Day is deemed to have been received on the next Working Day.

Supplier Services

1. Services: In consideration of the payment of the Service Fee, the Supplier will provide the Services to the Customer in accordance with this agreement and as specified in the Quote.
2. Additional Services:  If the Customer requires Additional Services, the Customer will notify the Supplier in writing of the Additional Services it requires.  Following notification under this clause, the Supplier will notify the Customer in writing of the Additional Fees and any changes required to the Service brief.  If the Customer agrees to the Additional Fees and the changes to the Quote, this agreement will be deemed to be varied accordingly.

Services

1. Time Frames: The parties will use reasonable endeavours to comply with the timeframes for Services specified in the Quote.
2. Delays: The Supplier will notify the Customer in writing within five Working Days of becoming aware of a delay in completing any Services giving the cause of the delay and estimated date of completion. On receiving notice of a delay, the Customer must not unreasonably refuse to grant the Supplier an extension for the completion date of the relevant Services.

Acceptance Testing

1. Acceptance Tests: The Supplier will perform Acceptance Tests if specified in the Quote.
2. Supervision: The Customer may supervise any Acceptance Tests.  The Customer must give prior written notice that it intends to supervise an Acceptance Test and will bear all costs relating to the supervision of an Acceptance Test.
3. Compliance: If the Services materially comply with the Acceptance Tests, the Customer must issue a written acceptance notice for that Development Phase within 2 days of completion of the Acceptance Tests for the relevant Development Phase.
4. Non-Compliance: If the Customer notifies the Supplier, within 2 Working Days of completion of the Acceptance Tests for the relevant Development Phase, that the Services is materially non-complaint with the Acceptance Tests at a Development Phase, the Customer will provide written notice to the Supplier and may: set a new date for carrying out further tests on the Services on the same terms and conditions; accept the Services subject to conditions; or reject the Services for non-conformance with this agreement and terminate this Agreement by giving written notice to the Supplier.
5. Deemed Acceptance:  If the Customer does not provide notice to the Supplier in accordance with clause 6.3 or 6.4 above then the relevant Development Phase will be deemed to be accepted by the Customer.
6. Acceptance Tests: The Supplier will perform Acceptance Tests if specified in the Quote.

Customer Obligations

1. General Use: The Customer must: use the Services in accordance with this agreement solely for the Customer’s own lawful internal business purposes; and not resell or make available the Services to any third party.
2. Access Conditions:  When using the Services, the Customer must: not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier; not attempt to undermine the security or integrity of the Underlying Systems; not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service; and neither use the Services in a manner, nortransmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is objectionable, incorrect or misleading.
3. Customer Material:  The Customer will provide all required material to the Supplier according to the Service brief (Customer Material) to be incorporated into any Services provided. All Customer Material will be provided in a form suitable for incorporation into Services provided without any modification by the Supplier.
4. Hosting: The Customer must comply with any and all hosting/platform terms and conditions, any other third party’s terms and conditions and any and all applicable legislative provisions.
5. Intellectual Property Claims:  If any person makes any claim alleging that the Customer Material or any use of it by the Supplier in accordance with this agreement infringes any Intellectual Property Right or any other right of any person, the Customer must and hereby does indemnify and hold harmless the Supplier from and against any such claim and from and against any loss(including reasonable legal fees) arising in connection with the claim.

Fees

1. Fees: The Customer will pay the Service Fee as set out in the Quote and any Additional Fees incurred under this agreement.
2. Invoices: The Supplier will provide the Customer with a valid tax invoice setting out the Service Fee, and any Additional Fees.
3. Invoice Disputes: The Customer must raise any dispute regarding an Invoice in writing within 14 days of the date of the Invoice. The Supplier will consider any issues raised in good faith and will promptly advise The Customer of any resolution.
4. Payment: The Customer must pay to the Supplier the amounts set out in the invoice within 14 days of the date of invoice by electronic payment to the account nominated by the Supplier.
5. Refund of Fees: The Customer agrees that all Fees paid are non-refundable.
6. Late Payment: The Supplier may charge late fees and interest on overdue amounts.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Supplier’s primary trading bank as at the due date (or, if the Supplier’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
7. Late Payment Administration Fees: The Supplier may charge The Customer 10% of overdue amounts per month (30 days) outstanding.
8. Debt Collection and Legal Fees related to overdue amounts: The Customer will be responsible for all debt collection and legal fees incurred for non payment of overdue amounts.

Expenses

1. If the Customer requires the Nominated Consultant to undertake either domestic or international travel then the Customer is responsible for all pre-approved travel, accommodation and per diem expenses associated with such travel and all Taxes arising from such travel, accommodation and other expenses.
2. Any entertainment or such like expenses incurred by the Nominated Consultant in the provision of the Services shall be reimbursed by the Client but only if approved by a Client Manager and submitted on the appropriate Client documentation.

Data

1. Access: The Customer acknowledges that: the Supplier may require access to the Data to exercise its rights and perform its obligations under this agreement; and to the extent that this is necessary, the Supplier may authorise a member or members of the Suppliers personnel to access the Data for this purpose.
2. Consent: The Customer must arrange all consents and approvals that are necessary for the Supplier to access the Data as required under clause 10.1
3. Agent: The Customer acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, the Supplier is acting as an agent of the Customer for the purposes of the Privacy Act 1993 and any other applicable privacy law.  The Customer must obtain all necessary consents from the relevant individual to enable the Supplier to collect, use, hold and process that information in accordance with the agreement.
4. Indemnity: The Customer indemnifies the Supplier against any liability, claim, proceeding, cost, expense (including reasonable legal fees) and loss of any kind arising from any actual or alleged claim by a third party that any Data Infringes the rights of that third party (including Intellectual Property Rights and privacy rights).

Intellectual Property

1. Ownership: Subject to clause 11.2, title to, and all Intellectual Property Rights In, the Services, the Services, and all Underlying Systems is and remains the property of the Supplier (and its licensors). The Customer must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
2. Data and Intellectual Property:  Title to, and all Intellectual Property Rights in, the Data and Intellectual Property (as between the parties) remains the property of the Customer.  The Customer grants the Supplier a worldwide, non-exclusive, fully paid up, transferable, revocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the agreement.

Confidentiality

1. Disclosure and Use:  Each party will maintain as confidential at all times, and will not at any time, directly or indirectly: disclose or permit to be disclosed to a person; use for itself; or use to the detriment of the other party; Confidential Information, except: to the extent reasonably required for a party to perform its obligations in accordance with the terms and intent of this agreement.  Without limiting the general effect of this clause, a party may disclose Confidential Information to those of its officers, employees, or professional advisers as is reasonably required to perform this agreement, but strictly on a "need to know" basis; as required by law; or as authorised in writing by the party for whose benefit confidence is to be maintained.
2. Duration of Obligation:  The obligations in clause 12.1 will survive termination of this document.  
3. Security: Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party's Confidential Information whilst it is in the receiving party's possession or control.
4. Termination: Each party must return or, at the other party's option, destroy all Confidential Information of the disclosing party in the receiving party's possession or control, on the earlier of the Supplier's request or on termination of this agreement for any reason.

Liability

1. Exclusion of Liability:  To the full extent permitted by law, the Supplier excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
2. Warranties and Representations:  To the full extent permitted by law, the Supplier excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
3. Extent of Liability:  The Supplier's total aggregate liability for all claims relating to this Agreement is limited to the Fees payable and actually paid by the Customer to the Supplier under this Agreement.
4. Contributory Liability:  Either party's liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
5. Applicable Laws: This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, guarantees, conditions or obligations. If such legislation applies,to the extent possible, the Supplier limits its liability in respect of any claim to, at the Supplier's option:
6. in the case of goods: the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goodsor of acquiring equivalent goods; or the payment of having the goods repaired; and
7. in the case of services: the supply of the services again; or the payment of the cost of having the services supplied again.

Termination

1. Termination for Convenience: Subject to clauses 3 and 4 below, this Agreement may be terminated by either party giving the other party not less than 30 days’ notice in writing to that effect or in the case of the Client paying 30 days in lieu of notice.
2. Event of Default:  If the Supplier considers on reasonable grounds that the Customer has breached or failed to perform an obligation under this agreement in a material respect, or has become Insolvent, the Supplier May, in addition to any other rights the Supplier may have, do any or all of the following: Give notice to the Customer setting out the details of the default and the available remedy or remedies (if the default is capable of being remedied) (Default Notice). Suspend or delay the supply of Goods until the default is resolved to the Supplier’s satisfaction.
3. Fees:  On termination or expiry of this agreement, the Customer must pay all Fees for Services provided prior to that termination or expiry.
4. Return of Property:  Upon termination of this agreement, both parties will return all Intellectual Property and other property provided under this agreement if requested or, at the other party’s election, destroy such property.