1.1 Unless the context otherwise requires, the following expressions shall have the following meanings:
“Confidential Information” means information which is or has been disclosed by one party to the other, but does not include any information that is:
a. On receipt, in the public domain, or which subsequently enters the public domain without any breach of any agreement;
b. On receipt, already known by the party receiving it;
c. At any time after the date of receipt, received in good faith from a third party; or
d. Required by law to be disclosed;
“Customer Data” means any information supplied by the Customer to the Supplier in electronic, printed, image or written format;
“GST” means goods and services tax imposed under Goods and Services Tax Act 1985;
“Intellectual Property” means copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, confidential information and any other intellectual proprietary right or form of intellectual property;
2.1 The Supplier will perform the Services in accordance with the agreed terms and will use its reasonable endeavours to complete the Services within the timeframe (if any) agreed by the parties.
2.2 The Customer acknowledges that the Services cannot be performed until it has given the Supplier all of the Customer Data, content and other materials and matters reasonably required by the Supplier. The Supplier will have no liability for any delays or failure where such delays or failure is the direct or indirect result of any act or omission of the Customer.
2.3 The Customer shall ensure that the Supplier and its personnel have full and safe access to the Customer’s premises and any necessary equipment, materials and information.
3. Customer Data
3.1 The Supplier acknowledges that the Customer Data remain the property of the Customer.
3.2 Unless otherwise agreed, the Customer will be solely responsible for making back-up copies of the Customer Data. The Supplier will be responsible for backing up its own data, which may include the Customer Data, in original or amended form, in accordance with its own back-up procedures.
3.3 The Supplier will on reasonable notice make the Customer Data and related data, documentation, or records maintained on behalf of the Customer available for inspection by the Customer.
4. Excluded Services and Responsibilities
4.1 The Customer acknowledges that:
a. The Customer has no entitlement to conduct benchmarking activities or implement shadowing activities, except as expressly agreed by the Supplier in writing;
b. The Supplier will not be responsible for any failure to meet its obligations where such failure is attributable to the act or omission of third party contractor of the Customer; and
c. The Supplier does not accept responsibility for any interruption to the Services or to the Customer’s business operations which is attributable to a virus, however caused or introduced, or for any failure to meet its obligations to the extent the same is attributable to the effects of a virus.
5. Warranty and Limitation of Liability
5.1 The Supplier warrants for a 30-day period (“Warranty Period”) that the Services to be performed by it will be performed with due care and skill.
5.2 The Customer’s sole remedy for a breach of the warranty is limited, at the Supplier’s option, to one of the following:
a. The supplying of the Services again at no additional charge; or
b. The refund of any Charges paid to the Supplier for the defective Services.
5.3 If the agreement made requires the Supplier to procure and supply to the Customer any third party products, the Supplier makes no warranties with respect to those products unless provided in writing in an attachment to this agreement. The Customer’s rights against the Supplier in relation to any third party products are limited as set out in the agreement and in any relevant attachment.
5.4 The Customer is fully responsible for its use of the results of the Supplier’s Services and indemnifies and holds harmless the Supplier in connection with any claim relating to the Customer’s or any third party’s use of or reliance on such results.
5.5 Except for the warranty provided in clause 5.1, to the fullest extent permitted by law, all warranties and conditions, whether express or implied, are excluded including but not limited to implied warranties of merchantability and fitness for a particular purpose.
5.6 The Supplier, its officers, employees, contractors or agents will not be liable in contract, tort, or otherwise to the Customer for any direct or indirect damage, loss or cost arising directly or indirectly from any of the Supplier’s acts or omissions.
5.7 If the Customer is using the Services for the purposes of a business, then it agrees that the provisions of the Consumer Guarantees Act 1993 will not apply to its use of or any reliance on any Services.
5.8 If the Supplier is held liable to the Customer for any reason, the Supplier’s maximum liability is the amount paid by the Customer for the Services to which the liability relates.
5.9 No claim will be valid unless the Customer gives the Supplier written notice of the claim within 6 months after it becomes aware or should have become aware of the circumstances giving rise to such claim.
6. Intellectual Property Rights
6.1 Upon final payment, and subject to clause 6.2, the Supplier grants to the Customer a perpetual, non-transferable, non-exclusive paid-up right and licence for its own internal business purposes to use, copy, modify and prepare derivative works of any deliverables originally developed for and provided to the Customer (whether jointly or separately prepared). All other intellectual property rights in the deliverable items remain in and/or are assigned to the Supplier.
6.2 The Customer acknowledges and agrees that in the course of its performance of the Services the Supplier may use products, materials or methodologies proprietary to it or a third party (“Tools”). Except to the extent that those Tools form part of the deliverable items or are licensed to the Customer under separate licence agreements, the Customer agrees that it will have or obtain no rights in such Tools.
7. Charges and Payment
7.1 The Customer must pay the Supplier the Charges plus GST by the 20th day of the month following the date of invoice and any other charges payable.
7.2 If the Customer fails to make payment of any amount due on the due date, the Supplier may without prejudice to its other rights require the Customer to pay interest on the amount due from the due date until the date of payment, at a rate equal to 5% above the current overdraft rate that the Supplier has with its principal banker (in addition to the Customer remaining liable for the full amount outstanding). Any collection or agency costs associated with recovery of any amount payable to the Supplier shall be for the Customer’s account.
7.3 Unless otherwise specified all Charges are stated in New Zealand dollars.
7.4 For Customers outside of a current signed Service Level Agreement, the Supplier reserves the right to increase prices or to introduce new prices for our products and services at any time.
8.1 Each party agrees to protect and keep secret the confidential information of the other in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such confidential information. This obligation does not extend to information which:
a. Is previously known to it without an obligation of confidence; or
b. Is independently developed by or for the receiving party without access to the other party’s confidential information; or
c. Is acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information; or
d. Is or becomes publicly available through no breach of the agreement made; or
e. Is required to be disclosed by law.
8.2 Each party agrees to return to the other all confidential information made available, including copies thereof, on request by the disclosing party.
9.1 Either party may terminate their agreement immediately by notice in writing if:
a. The other party breaches any term of the agreement and such breach is not remedied within 14 days of notification by that party;
b. The other party becomes, threatens or resolves to become subject to any form of insolvency administration; or
c. The other party ceases or threatens to cease conducting its business in the normal manner.
9.2 Termination shall be without prejudice to any rights or remedies which either party has against the other.
9.3 Upon termination for any reason, the Customer will pay the Supplier for all Services rendered and expenses incurred prior to the date of termination, immediately on presentation of invoice.
10.1 Any notice or other communication shall be:
a. In writing;
b. Marked for the attention of the person specified at the outset or any replacement person notified by the relevant party; and
c. Left at the address or sent by prepaid post or facsimile to the address or facsimile number of the relevant party specified at the outset, or any replacement address or facsimile number notified by that party.
10.2 Notices or other communications are deemed received:
a. If delivered by hand, on delivery;
b. If delivered by post:
i. On the third day following posting if sent and received within New Zealand; and
ii. On the tenth day following posting to or from an overseas destination.
c. If delivered by facsimile, on production of a transmission report by the machine from which the facsimile was sent in its entirety to the facsimile number of the recipient, specifying the correct number of pages sent, the date and time of transmission and that transmission was successful, provided that the onus of proving receipt shall be on the sender.
11. Dispute Resolution
11.1 Where any dispute arises between the parties concerning the circumstances, representations, or conduct, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 11.
11.2 The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The
other party must within 7 days of receipt of the notice give written notice to the first party naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.
11.3 If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.
11.4 The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.
12. Bill and Hold
12.1 Not withstanding the fact that the goods have not been delivered to the Customer, they accept liability and risk in the goods held as if they were in their own control and acknowledge that all terms and conditions apply. Furthermore, the Customer confirms that payment will be made unconditionally to Solution Dynamics Limited in accordance with the agreed payment terms.
13.1 Excusable delay: No party will be liable for any failure or delay in performing its obligations if such failure or delay arises directly or indirectly from an event reasonably unforeseeable or beyond its control.
13.2 Independent Contractor: Each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing will be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the parties for any purpose.
13.3 Subcontracts: The Supplier may with the prior consent of the Customer subcontract for the performance in whole or part, such consent not to be unreasonably withheld provided that the Supplier shall be entitled without consent to subcontract any part of the service to any related company. The Supplier may, without the consent of the Customer, engage individuals on a subcontract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of the Services.
13.4 Assignment: The Customer may not assign the benefit of the service or transfer, sub-licence or otherwise dispose of its interest in the service without the Supplier’s written consent.