Terms and Conditions
TABLE OF CONTENTS
1. Definitions and interpretation
1.1 Definitions: In this Statement of Work, unless the context otherwise requires:“Charges” means any amounts payable by the Customer to Optimation for Services as specified in this Statement of Work;
“Commencement Date” means the date specified in this Statement of Work;
“Customer” means the party identified as the Customer in this Statement of Work;
“Confidential Information” means all information that concerns a party to this Statement of Work which is disclosed by that party (“the Disclosing Party”) to the other party (“the Receiving Party”). Such information includes all information relating to the business activities, know-how, products, services, and technologies of the Disclosing Party but does not include information that:
a) is, or becomes, general public knowledge without fault of the Receiving Party; orb) is, or becomes, available to the Receiving Party from a source other than the Disclosing Party without breach of any confidentiality obligations of that source; or
c) is independently developed by the Receiving Party without use of the Disclosing Party’s confidential information; or
d) is required to be disclosed by law or under a court order; or
e) is already known to the Receiving Party prior to that information being disclosed to the Receiving Party by the Disclosing Party;
“Deliverables” means as the context shall require, any software, documentation, work products or other material identified in this Statement of Work as deliverables to be supplied by Optimation;
“Existing IPR” means any Intellectual Property Rights which were developed or arose prior to this Statement of Work or are developed independently of this Statement of Work, including any enhancement or modification to any of those Intellectual Property Rights, whenever that enhancement or modification arises.
“General Terms and Conditions” means these terms and conditions;
“Intellectual Property Rights” means any intellectual and industrial property rights throughout the world including any copyright, patent, trademark, design right, trade secret, inventions, circuit layouts, or other industrial or intellectual property rights recognised or protected by law, whether registered or unregistered;
“New IPR” means any Intellectual Property Rights which are developed or arose during the performance of the Services, including any enhancement or modification to any of those materials or Intellectual Property Rights, but excluding any Existing IPR.
“Services” means any work carried out by Optimation under this Statement of Work;
“Statement of Work” means a detailed description of Services agreed in writing by both parties in accordance with Section 4 (Statements of Work);
“Statement of Work Template” means this statement of work agreed by the parties in respect of any Services, which will be subject to and include these Standard Terms;
“Third Party IPR” means any materials (including the Intellectual Property Rights in those materials) which are the property of a third party;
“Working Day” means any day other than Saturday, Sunday, a public holiday that is generally observed in Wellington or Auckland, New Zealand, and any day between the dates of December 25 and January 5; and
“Working Hours” means between the hours of 8.30am and 5.30pm (less an hour for lunch) on a Working Day.
2. Commencement and term
2.1 Commencement and term: This Statement of Work will commence on the Commencement Date and will continue until terminated in accordance with clause 9 (Termination).
3. Services
3.1 Provision of Services: Optimation will provide the Services to the Customer in accordance with this Statement of Work.
3.2 Out of hours Services: Unless otherwise agreed in each instance in this Statement of Work, Optimation will provide the Services during Working Hours only. However, where requested by the Customer, Optimation may in its discretion provide part of all of the Services in circumstances where:
a) the hours worked by Optimation to provide the Services exceed 8 continuous hours in any one Working Day;b) the Services are performed on a day that is not a Working Day; or
c) the Services are provided before 7.00am or after 6.30pm on a Working Day;
in which case such work will be invoiced at Optimation’s then current rate card rates.
3.3 Timeframes: Any timetable or timeframes set out in this Statement of Work are Optimation’s best estimates of the time required to perform the Services and Optimation shall have no contractual responsibility to achieve those timeframes, although it must use its reasonable endeavours to do so. Where any delay in Optimation’s performance of the Services is caused by the Customer, or other persons for whom Optimation is not responsible, the timeframe for completion of this Statement of Work that are affected by the delay shall be adjusted to reflect the effect of such delay as reasonably estimated by Optimation and notified to the Customer in writing. Delays by the Customer include, but are not limited to, failure of the Customer to provide required information to Optimation to enable Optimation to perform its obligations under this Statement of Work.
3.4 Acceptance of Deliverables: A Deliverable shall be deemed to be accepted by the Customer if:
a) within 30 days after the Customer’s receipt of a Deliverable (the “Acceptance Period”) the Customer does not notify Optimation in writing of a failure of the Deliverable to substantially conform to the specification applicable to the Deliverable; or
b) the Customer uses the Deliverable in a production environment.
3.5 Notification: If the Customer does notify Optimation of a failure in a Deliverable during the Acceptance Period for that Deliverable Optimation will (unless it disputes the claim) use reasonable efforts to rectify that failure. To the extent that the failure results from an act, instruction, negligence or omission by the Customer, Optimation will be entitled to charge for rectification work on a time and materials basis at its then current rates.
3.6 Operational requirements: Optimation will use all reasonable endeavours to ensure each of its personnel comply with the Customer’s reasonable security and operational policies as notified to Optimation in writing by the Customer from time to time.
4. Customer's Obligations
4.1 Customers’ obligations: The Customer shall at its own expense:
a) be responsible for the due and timely performance by its staff and contractors of their obligations under this Statement of Work;
b) give Optimation prompt and adequate access to those of its personnel, facilities, resources and systems as may be necessary or convenient to enable Optimation to perform its obligations under this Statement of Work;
c) obtain any approvals, consents, authorities, licenses and permits that may be required by Optimation for the performance of its obligations under this Statement of Work; and
d) promptly provide all information, decisions, assistance and co-operation that Optimation may reasonably require for the performance of its obligations under this Statement of Work.
5. Charges and payment
5.1 Charges: The Customer shall pay the Charges for the Services and Deliverables provided by Optimation pursuant to that Statement of Work. If this Statement of Work does not specify the Charges payable for any Services or Deliverables to be provided under that Statement of Work, those Services and Deliverables shall be charged on a time and materials basis at Optimation’s then current rates. For the avoidance of doubt, estimates of hours and/or fees are not a cap on hours or a fixed price unless otherwise stated.
5.2 Expenses: The Customer will also pay out of pocket expenses incurred by Optimation in the course of supplying the Services and Deliverables, including but not limited to accommodation and meals, travel, equipment transport and computer rental expenses;
5.3 Variation to charges: Optimation may vary the Charges and Optimation’s then current rates, by giving written notice to the Customer at least 60 days prior to the effective date of such variation provided that Optimation may only vary Optimation’s then current rates and only once in any calendar year unless such variations relate to third party charges incurred by Optimation.
5.4 Invoices: Unless stated otherwise in this Statement of Work, Optimation will invoice the Customer for Services on a monthly basis. All invoices shall be stated and payable in New Zealand dollars unless otherwise agreed in writing between the parties in each instance.
5.5 Payment: The Customer will pay each Optimation invoice without setoff or deduction no later than the 20th of the month following the date of invoice. If payment is not received by the due date for payment, Optimation may:
a) suspend the performance of any or all services until all outstanding Charges have been paid in full; and/or
b) charge default interest on overdue amounts calculated on a daily basis at an interest rate that is 2% per annum above the overdraft interest rate charged to Optimation by its bank from time to time.
5.6 Indemnification: The Customer shall indemnify Optimation for the costs of collection of overdue amounts, including all legal costs, incurred by Optimation on a solicitor-client basis.
5.7 Taxes: The Charges, expenses and all other charges do not include Goods and Services Tax (GST) nor any other applicable taxes, duties, Government fees, levies, imposts or charges (together, “taxes”). All such taxes may be invoiced by Optimation to the Customer at the rate applicable at the time of supply.
5.8 Risk and title: The risk in any Deliverables shall pass to the Customer upon delivery but the title in a Deliverable (subject to any Intellectual Property Rights in that deliverable) will only pass to the Customer when Optimation receives payment in full for the Services. Until payment is received Optimation shall be entitled to retake possession of any Deliverable.
6. Warranties and liability
6.1 Performance: Optimation warrants that it will provide resources to perform the Services and perform those Services with reasonable diligence and skill, and in accordance with generally accepted standards in the information technology services industry and any service levels described in any Statement of Work.
6.2 No warranties or representations: Except as expressly stated in clause 6.1, Optimation gives no warranties and makes no representations of any kind relating to the Services including any implied warranties of non-infringement, or fitness for a particular purpose. The Customer acknowledges that it is not relying upon any statement or representation of Optimation that is not expressly set out in this Statement of Work.
6.3 Liability: Except to the extent that it is unlawful to exclude such liability:
a) Optimation will not in any circumstances (including negligence or breach of statutory duty) be liable for any loss of opportunity, data or data use, profits, revenue or savings or for any indirect, consequential, special, exemplary or incidental damages or any other indirect loss;b) the liability of Optimation to the Customer arising out of any and all claims whatsoever (irrespective of the cause of action) will not in any circumstances exceed in aggregate the total amount of the sums paid by the Customer to Optimation in the 12 months prior to the date the claim arose for the Services in respect of which Optimation is in default.
6.4 Limitation: No action arising out of or in connection with this Statement of Work, regardless of form, may be brought by either party more than two years after the cause of action arose.
7. Intellectual Property
7.1 Existing IPR: All Existing IPR remains the property of its current owner.
7.2 New IPR: Any New IPR is the property of Optimation and shall vest in Optimation at the time it is created. The Customer shall deliver to Optimation any executed deeds, acknowledgements, agreements or other documents which Optimation requires to transfer or vest in Optimation any such New IPR.
7.3 Customer licence to New IPR and know how: Subject to payment in full by the Customer for the Services, Optimation hereby grants to the Customer a non-exclusive, sub-licensable, royalty-free, worldwide licence to use any New IPR to the extent that it is incorporated into in any Deliverable or any know how which is necessary to take advantage of the Services as intended by the parties.
7.4 Customer supplied material: The Customer grants to Optimation a perpetual, non-exclusive, worldwide, royalty-free, sub-licensable licence to use, for the purposes of performing the Services, the Intellectual Property Rights in any material it supplies to Optimation, including any of its Existing IPR.
7.5 Know how: Despite any other provision of this Statement of Work, Optimation may retain any reuse for any purpose any know how acquired in providing the Services.
7.6 Warranty and indemnity: Each party warrants that it is legally entitled to grant the licenses granted by this clause 7 and that any Intellectual Property Rights it supplies to the other party will not infringe the rights of any third party. Each party (the “first party”) indemnifies the other (the “other party”) in respect of any expenses, damages or liability incurred by the other party in connection with any third party claim that the other party has infringed their Intellectual Property Rights by using any material supplied by the first party. This indemnity is not subject to any limitation or cap on liability.
7.7 Giving effect to this clause: The parties each agree to do anything reasonably required, including signing any documents, to give effect to this clause 7.
8. Confidential Information
8.1 Obligations of the parties: Each party will keep secret and confidential at all times, all Confidential Information and will not use, communicate, cause to be communicated, copy, make available or otherwise resupply any Confidential Information to any person other than those of its employees, contractors, agents or representatives to whom disclosure is reasonably necessary for the purposes of this Statement of Work, or as otherwise required by law.
8.2 Employees and contractors: Each party will take reasonable steps with its employees, contractors, agents or representatives to ensure that none of them uses any Confidential Information in a manner not authorised by this Statement of Work or discloses the same to any person without the prior written consent of the other party. Optimation may disclose the Customer’s Confidential Information to third parties for the purposes of providing the Services, provided that such third parties agree to terms of non-disclosure consistent with the terms of this Statement of Work.
8.3 Return of Confidential Information: At the request of either party, the other will return or destroy any Confidential Information belonging to the requesting party.
8.4 Breach of confidentiality: Each party will immediately notify the other party of any breach of confidentiality however arising.
9. Termination
9.1 Termination for breach: Either party may terminate this Statement of Work by giving written notice to the other party if the other party breaches any provision of this Statement of Work and such failure or breach is not remedied within 30 days after the date on which written notice of the breach is given to the breaching party.
9.2 Termination on insolvency: Either party may terminate this Statement of Work under it by written notice to the other party if the other party ceases to carry on business, goes into liquidation or if a receiver or receiver and manager or statutory manager is appointed or if the other party enters into a scheme of arrangement with its creditors.
9.3 Termination without breach: Either party may terminate this Statement of Work at any time for any reason by providing the other party not less than 90 days’ prior written notice.
9.4 Preservation of rights: Termination of this Statement of Work shall not affect the rights of a party which accrued up to and including termination; or the provisions of this Statement of Work which by their nature, survive termination including: clause 6 (Warranties and liability), clause 7 (Intellectual Property) clause 8 (Confidential Information), and this clause 9.
10. Force Majeure
10.1 Neither party will be liable for failure or delay in performance of any obligation under this Statement of Work if the failure or delay is due to circumstances beyond its reasonable control. If a party is prevented from meeting its obligations under this Statement of Work due to circumstances beyond its reasonable control it shall notify the other party of those circumstances as soon as reasonably practicable and shall use its reasonable endeavours to minimise the effects of its inability to perform its obligations under this Statement of Work.
11. General
11.1 Assignment and subcontracting: The Customer may not subcontract, assign or novate any of its rights or obligations under this Statement of Work without the prior written consent of Optimation. Optimation may subcontract, assign, or novate any or all of its rights and obligations under this Statement of Work by giving notice in writing to the Customer.
11.2 Non-solicitation: Neither party will, during the term of this Statement of Work and for a period of six months after its termination or expiry, directly or indirectly solicit, interview, contract or hire any personnel (including contractors) of the other party. If a party contravenes the restriction in this clause, it will promptly pay the other party $50,000 per personnel involved by way of compensation / liquidated damages. This clause does not apply to a situation where a person responds to a legitimate advertisement.
11.3 Independent contractors: The parties are independent contractors, not employees, agents or representatives of each other. Neither party has the right to bind the other party or any other party to any agreement.
11.4 No benefit to third party: This Statement of Work will not operate for the benefit of any person or entity not a party to this Statement of Work, and nothing contained in this Statement of Work shall be construed as creating any right, claim or cause of action in favour of any such third party against either of the parties to this Statement of Work.
11.5 Waiver: No delay in enforcement or extension of time or failure to exercise any right under this Statement of Work will be deemed to be a waiver of any right by either party. No waiver of an earlier breach of this Statement of Work will be construed as a waiver of a later breach.
11.6 Severability: If any provision of this Statement of Work shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the rest of this Statement of Work shall not in any way be affected or impaired and shall be construed to preserve enforceability to the maximum extent compatible with the applicable law.
11.7 Entire agreement: The parties acknowledge that this Statement of Work contains the whole of the contract and understanding between them.
11.8 Amendments: Any modification to or variation of this Statement of Work must be in writing and signed by the respective authorised representative of each party.
11.9 Counterparts: This Statement of Work may be executed in any number of counterparts. Once the parties have executed the counterparts, and each party has received a copy of each signed counterpart which that party did not execute, each counterpart will be deemed to be as valid and binding on the party executing it as if it had been executed by all the parties.
Governing law: This Statement of Work shall be governed by and construed in accordance with the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand and agree that the courts of New Zealand are a convenient forum in which to resolve any dispute arising under or in relation to this Statement of Work.