Service Terms & Conditions
1.1 This Agreement commences on the Commencement Date and ends on the Termination Date as stated in Schedule A.
2. Provision of services
2.1 The Supplier must provide the Services stated in Schedule A to the Client.
2.2 The Supplier must provide the Products stated in Schedule A to the Client.
2.3 The Supplier will deliver Services to the Client by the dates specified in Schedule A.
2.4 The Services will be carried out by Supplier employee(s) in Schedule A.
3.1 The terms of the Proposal (Attached Invoice or Quote) shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Agreement may be subject to amendment, change or substitution. This Agreement comprises of this document, the Proposal, Schedule A, and any supplements.
4. Fees and Charges
4.1 Fees. In consideration of the Services to be performed by Supplier, Client shall pay Supplier fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
4.2 Expenses. Client shall pay Supplier’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for calls, shipping, typesetting, presentation materials, photocopies, computer expenses and parking fees and tolls at cost with standard markup of Supplier, and, if applicable, a mileage reimbursement; and (b) travel expenses including transport, meals, and accommodation, incurred by Supplier with Client’s prior approval.
4.3 Additional Costs. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, artwork licenses, typefaces, and domain or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal, incurred by Supplier with Client’s prior approval.
4.4 Invoices. The Supplier will invoice the Client on an interim basis for any Services performed or Products supplied as stated in Schedule A. All invoices are payable by the twentieth (20th) of the following month. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Supplier reserves the right to withhold delivery and any transfer of ownership of any current work, licenses and intellectual property if accounts are overdue or not paid in full.
5.1 General Changes. Unless otherwise provided in the Proposal, Client shall pay additional charges for Changes requested by Client which are outside the scope of the Services on a time and materials basis, at Supplier’s standard hourly rate stated in Schedule A. despite any maximum budget, contract price or final price identified therein. Supplier may extend any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes, or submit a new Proposal to Client for written approval.
5.2 Timing. Supplier will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables
within the time identified for such reviews and to promptly either: (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections. Supplier shall be entitled to request clarification of any concern, objection or correction. Client acknowledges and agrees that Supplier’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables and shall not constitute a breach of any term, condition or Supplier’s obligations under this Agreement.
6. Client Responsibilities
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with any parties; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and (c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Supplier’s name in the form, size and location as granted by Supplier. Supplier must seek Client’s consent before referencing work in portfolios, websites, and other media for the purposes of recognition or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
8. Confidential Information
Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal, or as may be required by a court or governmental authority.
9. Relationship of the Parties
9.1 Independent Contractor. Supplier is an independent contractor, not an employee of Client or any company affiliated with Client. Supplier shall provide the Services under the general direction of Client, but Supplier shall determine the manner and means by which the Services are accomplished.
9.2 Agents. Developer shall be permitted to use third party developers or other service providers as independent contractors.
9.3 Non-solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Supplier employee or Agent of Supplier, whether or not said person has been assigned to perform tasks under this Agreement. This clause 9.3 will not restrict the Client from hiring any person who has responded to a genuine published advertisement of positions with the Client without any other solicitation.
9.4 Recruitment fee. The Client agrees that if, despite clause 9.3, it (or a third party in relation to whom the Client has induced any Supplier personnel to enter into employment or a contract for services) employs or enters into a contract for services with any Supplier personnel within the Restraint Period, the Client will pay the Supplier a recruitment fee calculated as 18% of the Annual Salary Package paid or to be paid by the Client or third party to the relevant person, where Annual Salary Package means: (a) for employed personnel, gross base annual salary plus: (i) anticipated (or “on target”) bonus payments or commission; (ii) allowances; (iii) inducement payments; (iv) any other payment made and benefits provided (expressed as a monetary value) in connection with employment; and (v) where a car is provided, $16,000; and (b) for personnel engaged under a contract for services, the hourly rate paid or to be paid to the person multiplied by 40 hours multiplied by 46 weeks.
10. Warranties and Representations
10.1 By Client. Client represents and warrants to Supplier that Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content as well as any Trademarks does not and will not violate or infringe the rights of any third parties.
10.2 By Supplier. Supplier represents and warrants to Client that Supplier will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
11. Indemnification / Liability
11.1 By Client. Client agrees to indemnify, save and hold harmless Supplier from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement.
11.2 By Supplier. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Supplier agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Supplier’s representations and warranties made herein, except in the event any such claims arise directly as a result of gross negligence or misconduct of Client.
11.3 Limitation of Liability. In no event shall Supplier be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided.
12. Intellectual Property and Confidentiality
12.1 The Supplier assigns to the Client all existing and future Intellectual Property Rights in the Website other than Third Party Rights.
12.2 The Supplier agrees to return to the Client any or all of the Confidential Information on the request of the Client.
13.1 Force Majeure. Supplier shall not be deemed in breach of this Agreement if Supplier is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Supplier or any local, national or international law, governmental order or regulation or any other event beyond Supplier’s control (collectively, “Force Majeure Event”).
13.2 Governing Law and Dispute Resolution. The formation and enforcement of this Agreement shall be in accordance with the laws of New Zealand without regard to its conflict of law provisions.
14.1 Either party may terminate this Agreement where the other party breaches this Agreement and fails to rectify that breach within 7 days of receiving notice of the breach.
In signing this document you agree to the Service Terms & Conditions, Schedule A and Supplement 1 and the Proposal or Cost Estimate associated with this document. Acceptance via email or other written form is also legally binding.