Terms & Conditions
DEFINITIONS
Words defined here shall have the same meaning in each agreement.
“We”, “Us” means The Data Collective Limited.
“You” means the customer for any agreement.
“Agreement” means any consulting services engagement and any Statement of Work or Support & Maintenance plan.
“Confidential Information” means any information disclosed in confidence to one party by the other party, whether of a business, financial, technical or non-technical nature or otherwise and whether existing in hard copy form, electronically or otherwise but does not include information which is:
(i) On receipt by the recipient party, in the public domain or which subsequently enters the public domain without any breach of any Agreement;
(ii) On receipt by the recipient party, already known by that party otherwise than as a result of disclosure by the other party);
(iii) At any time after the date of receipt by the recipient party, received in good faith by the recipient party from a third party;
(iv) Required by law to be disclosed to the recipient party
“Deliverable” means all or any of the Objectives and Outcomes described in any agreement.
“Intellectual Property” means without limitation rights arising from copyright, trademarks whether registered or not, design, know how, patents, and all other forms of intellectual property.
1 CHARGES
1.1 We will invoice you for work completed on the last working day of each month for services performed in that month, or as otherwise agreed for a specific agreement.
1.2 All our charges are in New Zealand dollars and are exclusive of GST.
1.3 You will pay each invoice, by the last business day of the month following. We reserve our right to charge interest compounding monthly on the unpaid overdue balance at 2% per annum above the current overdraft rate charged by our bankers. We may also charge collection costs including legal costs on a solicitor-client basis and suspend the supply of any Deliverable in any agreement until your account is paid in full.
1.4 You must notify us in writing if you dispute an invoice or any part of an invoice within five working days of receipt and provide detailed reasons for the dispute.
1.5 You must pay us the undisputed part of our invoice in any event.
1.6 If one of your people calls us to act urgently for work outside the scope of an agreement will assume that person has the authority to instruct us and to incur our charges.
1.7 Disbursements such as non-local travel and accommodation relating specifically to the delivery of any agreement will be on-charged to you. Given the nature of these expenses relative to the project an exact estimate cannot be provided at this time, all anticipated disbursements will be discussed and agreed with you prior to being incurred.
2 INTELLECTUAL PROPERTY RIGHTS AND INDEMNITIES
2.1 We warrant that the Deliverables and their use by you under any agreement will not infringe the rights (including intellectual property rights) of any third party.
7.2 We indemnify you against all actions, proceedings, losses, liabilities, damages, costs and expenses (including reasonable legal expenses) suffered or incurred by you in relation to any actual or threatened claim that a Deliverable infringes the intellectual property rights of any third party, except to the extent that the infringement is caused by:
a) Misuse or modifications of any Deliverable by you.
b) Failure by you to use corrections or enhancements made available by us.
c) Information, direction, specifications or materials provided by you or by a third party.
2.3 You indemnify us against all actions, proceedings, losses, liabilities, damages, costs and expenses (including reasonable legal expenses) suffered or incurred by us in relation to any actual or threatened claim for infringement of the intellectual property rights of any third party arising through your use of our existing material, except to the extent that the infringement is caused by:
a) Our use or modification of any of your existing material for any purpose other than performing our obligations under this agreement.
b) Information, direction, specifications or materials provided by us or by a third party.
2.4 All Intellectual Property developed arising from our performance of any agreement shall belong to you on payment by you for the services under clause 2.3, except for Intellectual Property developed that as an enhancement of or relates specifically to The Data Collective’s pre-existing Intellectual Property which shall belong to The Data Collective.
3 PERSONNEL AND RESTRAINT
3.1 The personnel provided by each of us to perform our obligations under an agreement must be appropriately skilled and experienced to fulfil their responsibilities, be suitably qualified, and carry out their duties with due care, skill and diligence in accordance with generally accepted industry standards.
3.2 We may engage staff to perform the services as independent contractors without your prior approval. However, we will not subcontract our obligations under this agreement to other subcontractors without your prior written consent.
3.3 During the term of any agreement and for a period of six months after, should you seek to employ any of our personnel including contractors, then you shall pay us 15% (plus GST if applicable) of that persons previous 12 months remuneration.
3.4 During the term of any agreement and for a period of six months thereafter, we shall not solicit or engage, directly or indirectly, any of your customers with whom our services have been engaged, without your prior written consent.
4 CONFIDENTIALITY
4.1 While we are working with you, we will both obtain knowledge of each other’s Confidential Information. We both agree to hold the others Confidential Information in confidence and neither of us shall dispose of it to any third party.
4.2 Confidential Information includes all matters of a technical nature, research and development information, notes, products, know how, trade secrets, engineering or other data, specifications, processes, formulae, manufacturing, planning or marketing procedures, techniques or information, accounting procedures or financial information.
4.3 Neither of us will directly or indirectly, make, cause or permit disassembly, decompilation, reverse engineering, extraction of information, use, disclosure, copying, display, loan, publication, transfer of whether by sale exchange, gift, operation of law or otherwise, or other dissemination of any Confidential Information, in whole or in part, to any third party except to the extent, if any, expressly and specifically permitted by the terms of an Agreement or as otherwise permitted in writing by the other party.
4.4 We both shall keep the terms of any agreement confidential except as is necessary to make disclosure to third parties, professional advisers, employees, independent contractors in order to perform the obligations under any agreement, provided that all confidential information provided by both of us to employees and independent contractors is provided on the basis that those employees and independent contractors shall at all times maintain strict confidentiality.
4.5 We agree to maintain confidence even after our relationship is terminated.
5 TERMINATION
5.1 Either of us may terminate any agreement at any time on the provision of sixty (60) days’ notice in writing to the other party, provided that you will pay us for any actual and reasonable costs (including legal costs) and expenses incurred by us during the notice period but prior to receipt of your notice in relation to the agreement, together with a reasonable administration fee.
6 WARRANTIES
6.1 We warrant that we will perform the Services in a competent and professional manner by using appropriately qualified personnel exercising due skill and care in accordance with generally accepted industry standards. You must notify us of any failure to so perform within ten days after the date on which a failure first occurs. Our entire liability and your sole remedy for our failure to so perform shall be for us to, at our option:
a) Use reasonable efforts to correct such failure, and/or
b) Terminate the relevant agreement and refund that portion of any fees that we assess correspond to such failure to perform.
6.2 Except as expressly provided in this this agreement all warranties, terms and conditions, whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law.
6.3 You also warrant that you have the authority to enter this agreement and will perform your obligations under any agreement in a competent and professional manner by using appropriately qualified personnel exercising due skill and care in accordance with generally accepted industry standards.
7 LIABILITY
7.1 We shall not be liable to you for any loss or damages under this agreement that are directly or indirectly caused by:
a) Any delays, acts or omissions of you or your employees or delays, acts or omissions of any third party (other than our employees or contractors); or
b) Failure or delay by you to meet or comply with any of your obligations under any agreement.
7.2 Except where statute expressly requires otherwise, we are not liable in any event for any loss of profit, loss of revenue, loss of goodwill or business opportunities, loss of production, loss of customers or anticipated savings or any consequential, indirect or special damage, loss or injury of any kind suffered by you or any other person or entity.
7.3 Our total liability (under law of contract, tort, equity or otherwise) to you under or in connection with this agreement is limited to any amount that is payable to you as agreed by our insurer and provided for in our Professional Indemnity and Public Liability Insurance policies and we will provide you with a copy of those policies if you request.
7.4 We are not liable for any delay or failure to perform our obligations if the cause of the delay or failure is beyond our control.
8 TITLE AND INSURANCE
8.1 Any Deliverable provided to you by us under an agreement becomes your property when you pay in full all amounts owing under the relevant agreement. If you dispute an invoice, title in the Deliverable shall not pass until the dispute has been resolved either by agreement, mediation or court order and we have been paid as agreed or ordered.
8.2 During the term of any agreement and for twelve months following, we shall maintain valid insurance cover of the type applicable having regard to the scope and nature of our liabilities under that agreement including professional indemnity insurance and general public liability insurance.
9 DISPUTE RESOLUTION
9.1 Except where urgent injunctive relief is sought by either of us or where the termination clauses of this agreement apply, if a dispute arises out of any, neither of us may commence court proceedings until after written notice of the dispute has been served by one party on the other and the mediation process set out in this clause has been followed.
9.2 We will then try to negotiate a resolution to the dispute.
9.3 Failing that, the matter is to go to a mediator chosen by both of us. If we are unable to choose a mediator, we will agree to a mediator with expertise in the information technology industry appointed by the New Zealand Law Society. We agree to diligently and in good faith co-operate and participate in the mediation process making genuine attempts to find a solution acceptable to both of us. We will share the cost of the mediation.
9.4 If the dispute is not resolved in seven days of its reference to mediation or if either of us refuses to comply with our obligations to mediate we agree that the mediator shall, acting as an expert and not an arbiter, make a ruling in the dispute which we agree shall be binding upon us.
10 NOTICES
10.1 Any notices we send to each other must be in writing and sent to the address set out above or any new address later advised in writing.
11 GENERAL PROVISIONS
11.1 Neither of us may assign our rights or obligations under any agreement without the written consent of the other.
11.2 Any variation to the terms of any agreement shall be in writing and signed by us both.
11.3 Failure or omission by either of us at any time to enforce or require strict or timely compliance with any provision of this agreement shall not affect or impair that provision in any way or the rights of that party to avail itself of the remedies it may have in respect of any breach of any provision.
11.4 If any clause or provision of any agreement shall be or shall be deemed to be or declared invalid for any reason whatsoever that invalidity shall not affect the validity or operation of any other clause or provision of that agreement except insofar as may be necessary to give effect to the construction of such invalidity.
11.5 We reserve the right to collect, retain and use any information about you for the purpose of assessing your creditworthiness and/or enforcing any rights under this agreement. You authorise us to disclose such information to any person for the purposes set out in this clause. Where you are a natural person, the authorities under this clause are authorities for the purposes of the Privacy Act 2020.
11.6 In consideration of us agreeing to provide the Deliverable in any agreement at your request, where you are a company or a trust, the directors or trustees signing that agreement also sign in their personal capacity and jointly and severally undertake as principal debtors to you the payment of all moneys owed by you to us and indemnify us against non-payment by you.
11.7 Any agreement sets out the terms between us and may only be amended in writing. It supersedes all prior oral and written agreements, understandings or arrangements relating to this subject matter.
11.8 We shall both execute and deliver all documents and everything else necessary for the proper and complete performance of our respective obligations under any agreement.
11.9 All agreements are governed by the laws of New Zealand and we both irrevocably submit to the exclusive jurisdiction of the courts of New Zealand.
11.10 Any agreement may be executed in any number of counterparts (including facsimile copies) and provided that each of us has executed a counterpart, the counterparts together shall constitute a binding enforceable agreement between us.