The legal bit
Here's the fine print, this applies to every project we work on, from the smallest to the largest. Please read it and if you have any questions just ask.
1.1 This Agreement will commence on the date work commences and will continue until terminated in accordance with clause 9.
All work is carried out under these terms of trade.
1.2 These terms of trade apply to Whitfield Consulting and SweetIP.
2. Provision of services
2.1 SweetIP/Whitfield Consulting will work in good faith at all times.
2.2 Sweet IP/Whitfield Consulting will endeavour to commence and carry out the Services within the Estimated Timeframe set out in the proposal or Work Schedule.
2.3 The Services may from time to time be varied by agreement in writing, no deadline is set until agreement in writing is confirmed by both parties.
2.4 Sweet IP/Whitfield Consulting may engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of the Services.
2.5 Sweet IP/Whitfield Consulting will make all reasonable efforts to ensure that all of its personnel will at all times during the term of this Agreement, while on the Customer’s premises and when carrying out a Service in other places controlled by the Customer:
a. Act ethically, soberly and honestly;
b. Not be engaged or involved in any other business apart from carrying out the Services;
c. Not commit any criminal offence, and not otherwise breach any law or regulation;
d. Not sexually harass any person or unlawfully engage in any discriminatory behaviour;
e. Not represent in any way that they are employees of the Customer;
f. Carry and display at all times appropriate company identification;
g. Comply with the Customer’s procedures and policies for its premises as notified to Sweet IP/Whitfield Consulting from time to time and as reasonably required by the Customer; and
h. Not otherwise act in any manner which disrupts or adversely affects the Customer’s business.
3. Charges and payment
3.1 Sweet IP/Whitfield Consulting’s charges for the Services shall be as set out in the proposal or Work Schedule.
3.2 Unless otherwise stated all the Charges are exclusive of GST, which is payable in addition to the Charges.
3.3 Sweet IP/Whitfield Consulting will render a GST tax invoice containing the particulars specified in section 23(3) of the Goods and Services Tax Act 1985 and a description of the Services performed.
3.4 The Customer will pay all the Charges invoiced within 7 days or by arrangement, not later than the 20th day of the month following receipt of the tax invoice.
3.5 If the Customer disputes any item or items referred to in the monthly invoice, it will, within 5 working days of receipt of such invoice, notify Sweet IP/Whitfield Consulting of the reasons for disputing the item(s). Payment of any undisputed portion of an invoice shall not be delayed on account of such dispute.
3.6 In the event that payment is overdue, default interest will be payable at the rate of 3% per month (or part of month) on any amount due and unpaid. The “client” acknowledges that payment of default interest is without prejudice to Sweet IP/Whitfield Consulting’s other rights and remedies. If Sweet IP/Whitfield Consulting takes action to recover any amount due; the client agrees to pay Sweet IP/Whitfield Consulting’s costs. Such costs and expenses shall bear interest at the rate specified in this clause, from the date 7 days after we provide details of the costs and expenses to you up to the date of full reimbursement.
3.7 If, at any time, the scope or description of the Services is changed, or Sweet IP/Whitfield Consulting considers that the Charges for the Services and materials do not provide a fair and reasonable return for Sweet IP/Whitfield Consulting’s costs in carrying out the Services, Sweet IP/Whitfield Consulting may invoice the Customer to that effect.
3.8 Any change to the project specification may incur extra charges, especially in the case where change requests are not notified in advance.
3.9 The purchase of any third party modules are not included in any quotation provided for development work, our pricing is for installation and or configuation of modules for your use on your website. The cost of the module will be billed separately. We do not accept liability for performance of any third party module.
4. Confidential Information
4.1 All information (that is not generally available to the public) given to Sweet IP/Whitfield Consulting about the Customer and its clients must be treated as confidential.
4.2 Sweet IP/Whitfield Consulting may, with the prior consent of the Customer, disclose the confidential information to third parties but only to the extent necessary to ensure the successful delivery of the Services and the performance of this Agreement.
5. Defects Warranty
5.1 Sweet IP/Whitfield Consulting shall notify the Customer by previewing projects on a development server when Sweet IP/Whitfield Consulting considers that the Services have been completed in accordance with this Agreement. In the case of website development and software development publication of the website, or delivery of the software constitutes completion of the project.
5.2 If at any time during the period of 30 days commencing on the Completion or Publication Date the Customer believes there is a defect or other fault in the Services such that the Services do not comply with the terms of this Agreement in all material respects, the Customer shall notify Sweet IP/Whitfield Consulting of such perceived defect.
5.3 Sweet IP/Whitfield Consulting shall investigate the perceived defect notified pursuant to clause 5.2 and shall, upon verification of the existence of the defect, rectify such defect without any additional charge to the Customer. Where no defect is found it may be the case that a Change Request is initiated and further budget may be required to complete the additional elements.
5.4 Sweet IP/Whitfield Consulting shall not be liable under this clause to the extent that a defect is caused by the Customer or a third party, including failure of the Customer or a third party to maintain or operate its computer systems in accordance with specifications issued by Sweet IP/Whitfield Consulting, or by the manufacturer or supplier of the relevant software.
5.5 Sweet IP/Whitfield Consulting shall not be liable under this clause to any operational limitations caused by a client's operation of the supplied website or software.
6. Intellectual Property Rights
6.1 If the provision of the Services includes the purchase of a licence to use Sweet IP/Whitfield Consulting’s software (“the Sweet IP/Whitfield Consulting Software”), all of the trade marks, trade names, copyrights, patents and other intellectual property rights used or embodied in or in connection with the Sweet IP/Whitfield Consulting Software are and remain the sole property of Sweet IP/Whitfield Consulting. The Customer agrees that it will not during or at any time after the expiry or termination of this Agreement in any way dispute the ownership by Sweet IP/Whitfield Consulting of any such rights.
6.2 Any and all inventions, designs or processes or innovations conceived by Sweet IP/Whitfield Consulting prior to the term of this Agreement and utilised by it or its employees and/or contractors in rendering the Services to the Company or in performance of this Agreement are and remain the exclusive property of Sweet IP/Whitfield Consulting.
6.3 In the event that new inventions, designs, processes or innovations evolve in the performance of the Services or development of Sweet IP/Whitfield Consulting Software or otherwise as a result of this Agreement, the Customer agrees that the intellectual property in such inventions, designs, processes or innovations is the property of Sweet IP/Whitfield Consulting unless otherwise agreed in writing by Sweet IP/Whitfield Consulting and agrees to transfer (and procure that any person within its control transfers) such rights to Sweet IP/Whitfield Consulting upon Sweet IP/Whitfield Consulting's request but at Sweet IP/Whitfield Consulting's expense.
6.4 The Customer shall retain its existing intellectual property in its computer software. In the event that new inventions, designs, processes or innovations evolve in the performance of the Services or development of the Customer’s software, Sweet IP/Whitfield Consulting agrees that the intellectual property in such inventions, designs, processes or innovations is the property of the Customer.
6.5 Nothing in this Agreement grants to either party any ownership or other rights in the intellectual property of the other party other than as expressly set out in this Agreement.
7. Limitation of liability
7.1 To the extent permitted by the law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Services, the Sweet IP/Whitfield Consulting Software or to this Agreement, are excluded.
7.2 Sweet IP/Whitfield Consulting is not liable to the Customer for any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods (including any Sweet IP/Whitfield Consulting Software) or services supplied under this Agreement or in respect of a failure or omission on the part of Sweet IP/Whitfield Consulting to comply with its obligations under this Agreement.
7.3 In the event that any limitation or provision contained in this Agreement is held to be invalid for any reason and Sweet IP/Whitfield Consulting becomes liable for loss or damage that would otherwise have been excluded, it is agreed that the aggregate amount of all such liability is limited to the total amount of fees payable for the Services under this Agreement.
8.1 The Customer shall not at any time, during the term of this Agreement or for a period of 12 months after the termination or expiry of this Agreement (“Defined Period”), either on the Customer’s own account or for any other person, firm, or company, solicit, endeavour to entice away from or discourage from being employed by or contracted by, Sweet IP/Whitfield Consulting, any person who shall at any time during the Defined Period have been an employee or contractor or employee of a contractor who was involved in the provision of the Services on behalf of Sweet IP/Whitfield Consulting, without the prior written consent of Sweet IP/Whitfield Consulting. If Sweet IP/Whitfield Consulting consent to the solicitation, compensation is payable equivalent to the secondees annual salary / remuneration package at the time of taking up employment with Customer.
9.1 This Agreement may be terminated by Sweet IP/Whitfield Consulting or the Customer giving the other party one month’s notice in writing.
9.2 Either party may terminate this Agreement with immediate effect if the other party is in breach of its obligations under this Agreement and has failed to remedy the breach within 10 working days of notice in writing from the other party requiring the breach to be remedied.
9.3 The termination of this Agreement by either party shall be without prejudice to the rights and obligations of the parties immediately before termination.
9.4 The obligations set out under clauses 3, 4, 5, 6 and 7 will continue in force notwithstanding termination or expiry of this Agreement.
9.5 In the case of retainer based engagement a notice period of no less than one month shall be provided, in writing, by either party, and the terms agreed by both parties.
10. Dispute resolution
10.1 A party must use the following dispute resolution procedure to resolve any dispute before commencing any other dispute resolution proceedings.
10.2 If either party has any dispute with the other in connection with this Agreement:
a. that party will promptly give full written particulars of the dispute to the other.
b. the parties will promptly meet together and in good faith try and resolve the dispute.
10.3 If the dispute is not resolved within 7 days of written particulars being given (or any longer period agreed to by the parties) the dispute will be referred to mediation.
10.4 The mediation will be conducted by a LEADR panel mediator chosen by the parties or, if they cannot agree, by the President of the New Zealand Law Society or the President's nominee.
10.5 The parties must continue to comply with their obligations under this Agreement during the dispute resolution process.
11. Availability and Access
11.1 Subject to compliance with security requirements and access restrictions imposed by the Customer, Sweet IP/Whitfield Consulting may provide the Services during such hours and on such days as it considers necessary and appropriate to ensure compliance with its obligations under this Agreement.
11.2 The Customer shall, where relevant, ensure Sweet IP/Whitfield Consulting has full and safe access to the Customer’s premises (to the extent relevant to this Agreement) and any necessary equipment, materials, information, and personnel. The Customer should also ensure that Sweet IP/Whitfield Consulting is provided with all facilities, services and accessories reasonably required to enable Sweet IP/Whitfield Consulting to comply with its obligations under this Agreement.
12. Sweet IP/Whitfield Consulting’s Status
12.1 Sweet IP/Whitfield Consulting is an independent contractor without authority to bind the Customer by contract or otherwise and neither Sweet IP/Whitfield Consulting nor Sweet IP/Whitfield Consulting’s personnel are agents or employees of the Customer by virtue of this Agreement.
13.1 Sweet IP/Whitfield Consulting is not responsible for any failure to provide the Services according to this Agreement where such failure is caused, or contributed to, by an event outside Sweet IP/Whitfield Consulting’s reasonable control. No waiver of any breach of this Agreement shall be treated as a waiver of any other or any subsequent breach. The failure of either party to enforce any provision of this Agreement at any time shall not be interpreted as a waiver of that provision.
13.2 This Agreement constitutes the entire agreement between the parties and will supersede all previous negotiations, commitments and representations. Any variation to this Agreement shall be in writing signed by both parties.
13.3 Customer may not assign its rights under this Agreement without the prior consent of Provider, to be given in its sole discretion.
13.4 This Agreement is governed by the laws of New Zealand and the parties agree to submit to the non-exclusive jurisdiction of the Courts of New Zealand.