Terms of service.

1. Definitions and Interpretation

Agreement means these terms and conditions and the SOW;

Business Day means a day other than a Saturday, Sunday or public holiday in Auckland;

Customer means the customer named in the SOW; 

Deliverable means any deliverable set out in the SOW which is to be delivered by Service Provider to Customer;

Fees means the specific amounts set out in the Statement of Work which are to be payable by Customer to Service Provider for the provision of the Deliverables and Services;

Pre-existing IP means any intellectual property rights of the person which:

  1. exist at the date of this Agreement; or

  2. are not developed under this Agreement;

Service Provider means More Than Marketing Consultancy Services Limited;

Services means the services set out in the Statement of Work which are to be supplied by Service Provider to Customer; and

Statement of Work or SOW means the statement of work, letter or other form of work order which sets out in detail the Services or Deliverables to be supplied by Service Provider to Customer in accordance with this Agreement.

2. Provision of Deliverables and Services

  1. Service Provider will, in accordance with the Statement of Work, supply and deliver the Deliverables and provide the Services all on the terms and conditions set out in this Agreement and any specific terms set out in the SOW.

  2. In providing the Services and/or Deliverables, Service Provider may require assistance from Customer and access to Customer’s premises. Customer will:

    1. carry out the tasks that Customer is required to carry out as set out in the Statement of Work;

    2. obtain any licences, authorisations or consents to enable Service Provider to carry out its obligations under this Agreement;

    3. ensure that Service Provider has access to Customer’s premises to provide the Services and/or Deliverables; and

    4. comply with any reasonable instructions specified by Service Provider in respect of the Services and/or Deliverables.

  3. If Customer fails to comply with clause 2.2:

    1. Service Provider will not be liable for any failure or delay in providing the Services or Deliverables;

    2. the parties will agree a reasonable extension of time to the timetable set out in the SOW so that Service Provider can provide the Services and Deliverables; 

    3. Service Provider may charge, and Customer will pay, any additional costs resulting from such failure.

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

    3. Pricing and Payment Terms

  1. Customer will pay each Service Provider’s invoice in the manner and at the times specified in the Statement of Work, or if not specified, by the 20th of the month of the invoice.

  2. If Customer fails to pay any amount due in the absence of a dispute, Service Provider may without prejudice to its other rights or remedies under this Agreement:

    1. charge interest on the amount owing from the due date until the date of actual payment at 2% per annum over the base overdraft rate charged by Service Provider’s bankers from time to time; and/or

    2. suspend the provision of the Services and Deliverables, all without liability to Customer.

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

4. Intellectual Property Rights

  1. Subject to clause 4.2, Service Provider acknowledges and agrees that all intellectual property rights in the Deliverables (excluding the Service Provider’s Pre-existing IP), will vest absolutely in Customer on payment in full by Customer of all invoices issued relating to the provision of those Deliverables (and related Services). 

  2. Service Provider may include Service Provider’s Pre-existing IP in the Deliverables. Customer acknowledges that:

    1. any modifications or enhancements to the Service Provider’s Pre-existing IP will be deemed to form part of the Service Provider’s Pre-existing IP; and

    2. the Service Provider’s Pre-existing IP belongs to Service Provider.

  3. For the purposes of this clause, Service Provider grants Customer a non-exclusive, royalty free right to use the Service Provider’s Pre-existing IP only in the form in which it is included in the Deliverables. 

  4. Customer grants Service Provider a non-exclusive, royalty free right to use, copy and modify the Customer’s Pre-existing IP to perform Service Provider’s obligations under this Agreement.

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

  6. This clause 4 will survive termination of this Agreement.

5. Confidentiality

  1. Each party will treat as confidential all information obtained from the other under this Agreement.  Neither party will divulge such information to any persons (except to their employees, sub-contractors, independent contractors and professional advisers (for whom that party will be responsible), and then only to those employees, sub-contractors, independent contractors and professional advisers who need to know) without the other party’s prior written consent.

  2. Clause 5.1 does 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.

  3. If the recipient of any confidential information is required by law to disclose such confidential information, 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.

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

  5. This clause 5 will survive termination of this Agreement.

6. Term and Termination

  1. The term of this Agreement will commence on the date stated in the SOW and continues until terminated in accordance with the provisions of this Agreement. 

  2. Either party may terminate this Agreement if the other party: 

    1. is in material breach of this Agreement and fails to remedy such breach within 30 days of receiving notice requiring the breach to be remedied; or 

    2. goes into liquidation or has a receiver or statutory manager appointed of any of its assets, becomes insolvent or makes any arrangement with creditors.

  3. If this Agreement is terminated:

    1. Customer will immediately pay Service Provider for all work-in-progress that is unbilled as at the time of termination and any invoices that remain unpaid to the extent that such are not disputed; 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.

  4. Termination of this Agreement will not affect the provisions of this Agreement which are intended to continue, or should reasonably continue, after termination (whether expressly stated so or not). 

7. Warranties and Limitation of Liability

  1. Service Provider warrants to Customer that to the best of its knowledge and belief, the supply of any Deliverable or Services to Customer will not infringe the copyright of any third party. 

  2. If a claim for a breach of warranty in clause 7.1 is brought against Service Provider, Service Provider will, at its election, either:

    1. ensure or procure a continuing lawful right for Customer 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 in the SOW, but which does not infringe those rights; or

    3. if the remedies in paragraphs (2.1) or (2.2) are not commercially feasible, Service Provider may terminate this Agreement and refund any Fees paid by Customer in respect of the alleged or actual infringing Deliverable or Services.

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

  1. Customer will indemnify Service Provider against all costs, expenses and damages incurred through any claims against Service Provider resulting from:

    1. the use of the Deliverables by Customer; and

    2. Service Provider following the instructions of Customer in relation to the provision of the Services and Deliverables.

  2. Service Provider will not be liable to Customer for loss of profits, loss of revenue, loss of data, or any indirect, consequential or special loss or damage suffered or incurred by Customer arising out of or in connection with this Agreement.

  3. Service Provider’s liability to Customer arising out of all claims for loss or damage under this Agreement will not exceed in aggregate an amount equal to the Fees actually paid by Customer to Service Provider in the six months prior to time the liability arises.

8. Disputes

If a dispute arises out of or relates to this Agreement (Dispute), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has given written notice to the other party specifying the nature of the Dispute and the Dispute is not resolved within 15 Business Days of the notice being given.

9. Force Majeure

  1. Neither party will be responsible or liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure is due to circumstances outside its reasonable control including, acts of God, natural disaster, riot, terrorism, malicious damage or fire (each an Event of Force Majeure).  This clause 9.1 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 unaffected party will be entitled to terminate this 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. 

10. General

  1. This Agreement together with the Statement of Work constitutes the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter.  

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

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

  4. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that or of any other right, power or remedy.

  5. Service Provider may subcontract any of its obligations under this Agreement without obtaining Customer’s prior written consent.

  6. Customer will not assign, transfer or otherwise deal with this Agreement or any of its rights or obligations under this Agreement, whether in whole or in part, without the prior written consent of Service Provider.

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

    1. sent to the correct email or 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).

  8. A notice or communication in relation to this 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; 

    3. and in the case of personal delivery, when delivered.

  9. This Agreement will be governed by and construed in accordance with the laws of New Zealand.