These Standard Terms and Conditions of Business (“Conditions”) are to be read in conjunction with and form an attachment to Electronic Partners Limited’s (“the Company”) proposals for software, systems and electronic hardware development (“the Proposal”). On acceptance of the Proposal, the Customer (“the Customer”) becomes bound by the Conditions set out below in respect of the assignment (“the Assignment”) set out in the Proposal.
1. Charges and Payment
1.1 An estimate of the charges and related expenses of the Company is provided in the Proposal attached and will remain valid for 14 days from the date of the Proposal.
1.2 Unless otherwise stated in the Proposal, the Proposal shall not be construed as an offer to perform the Assignment within a fixed time or a fixed price.
1.3 The Company charges are based on an hourly rate for consultant time plus materials and disbursements.
1.4 All software supplied during a project is deemed evaluation software and must not be used in production or manufacturing. Upon completion of a project or milestone and when full payment has been received, we will formally release production software.
1.5 No charge shall be made for travelling time by the consultant unless it exceeds by a material amount the staff members normal travelling time between home and the Company’s office. Expenses directly associated with the Assignment, including travel, meals and accommodation (acceptable to the Company) for the Company staff, materials and equipment costs and appropriate costs for administrative assistance are payable by the Customer. All expenses will incur a 15% administration fee. Should the need arise during the Assignment for ancillary services not specified in the Proposal, their provision shall be subject to agreement before expenditure is incurred.
1.6 All charges shall be exclusive of GST and other government taxes and levies which are properly due.
1.7 Unless an alternative payment schedule is set out in the Proposal or is otherwise agreed, the Company shall invoice the Customer on a weekly basis with those invoices being payable within 20 days of the end of the month.
1.8 If payment is not made by the due date the company shall be entitled (without prejudice to any other right or remedy available to it) to charge interest on the outstanding amount at a rate of 2% above the ASB Bank commercial overdraft base rate. All charges for collecting any overdue payments will be borne by the Customer.
1.9 If the Proposal links payment to milestones or project stages, the Company shall be entitled to payment on completion of the milestone or stage and shall further be entitled to payment if failure to complete the milestone by the due date has been due to delays or problems by the customer or a third party outside the Company’s control.
2.1 The risk in any goods supplied by the Company during the Assignment will pass to the Customer on delivery, being the time of dispatch of the goods from the Company gate to the Customer (i.e.: ex works).
2.2 The Customer shall be responsible for insurance of the goods from the time of delivery.
2.3 Notwithstanding delivery, the property and the goods shall not pass to the Customer until all sums due or owing on any account whatsoever by the Customer has been received by the Company in cash or cleared funds.
2.4 In the event of non payment by the due date, the Customer hereby irrevocable gives the Company, its agents and servants, licence upon giving reasonable notice to enter on and into its premises occupied by the Customer to search for and remove any of the software or equipment supplied without in any way being liable to the Customer or any person claiming through the Customer with respect of any damage caused by such entry.
3. Ownership of Intellectual Property
3.1 Intellectual Property Rights means all intellectual and industrial property rights of any nature whether conferred by statute, common law or equity, including without limitation, all rights in any patent, copyright, trade mark, design, database, circuit lay-out, know-how, trade secret, Confidential Information, or right of confidence including all such rights or similar rights in any invention, device, material, data, drawing, sample, method, process, text, algorithm, schematic, software, hardware, firmware, set-up, any other original works or materials, or any component of the same, and any application to register the same, whether or not registered or capable of registration.
3.2 All Intellectual Property Rights existing in a party prior to this contract (Existing Intellectual Property Rights) will remain with that party. Except to the extent necessary to complete the Assignment or expressly stated otherwise, neither party grants any rights in its Existing Intellectual Property Rights to the other party.
3.3 Unless otherwise specified in the Proposal and subject to clause 3.4, all Intellectual Property Rights arising directly from the Assignment will, upon completion of the Assignment, vest in the Customer, provided that the Customer has complied with all of its obligations, including payment of all moneys due, under this contract.
3.4 Notwithstanding clause 3.3, where the Company makes any improvement to its Existing Intellectual Property Rights while undertaking the Assignment and that improvement (a) relates to the Company’s tools of the trade, meaning without limitation, any technical information, machine, device, method, process, technique, manufacture, design, specification, composition of matter, formula, algorithm, pattern or programme that the Company uses in the ordinary course of its business; and (b) was incidental to the purpose of the Assignment, the Company will retain ownership of any Intellectual Property Rights in that improvement provided that the Company grants the Customer a non-exclusive royalty free license to use such Intellectual Property Rights to the extent necessary to make use of the Intellectual Property Rights arising directly from the Assignment and vested in the Customer as per clause 3.3.
The Company and the Customer may enter into a separate maintenance agreement commencing at the expiration of the warranty under these conditions for an additional maintenance fee on terms and conditions set out in the proposal and/or as set out in a separate written maintenance agreement entered into by the parties.
5. Licenses of Software/Library Code
5.1 If in addition to the development of software and other consultancy services the Proposal and Assignment includes the licensing by the Company to the Customer of existing standard software and library code held by the Company, the Customer acknowledges that in respect of such licenses an extra fee or royalty shall be payable on terms to be agreed.
5.2 The Customer as licensee agrees and undertakes:
a) Not to copy, reproduce, translate, adapt, vary, decompile, dis-assemble, re-assemble or modify the software nor communicate it to any third party without the licensors prior written consent.
b) Not to make the software available (including programme listings, object and source programme listings, object code and source code) in any form to any person without the prior written consent of the licensor.
c) Not to commit any unauthorised third person to examine, repair or in any way alter the software without the prior written consent of the licensor.
5.3 In respect of software licensed to the Customer by the Company, the software and its documentation (including any manual), is provided “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The Company does not warrant that the functions contained in the software will meet the Customers requirements or that the operation of the software will be uninterrupted or error free. The entire risk as to the quality and performance of the software is with the Customer. If the software is defective, the Customer will assume the entire cost of all necessary servicing, repair or corrections.
5.4 In the event that software under the Proposal is supplied subject to its own “shrink wrap” conditions then those conditions shall apply and in the event of conflict those shrink wrap terms and conditions shall apply.
6. Warranty – Developed Software and Equipment
6.1 Subject to clause 7 the Company shall make good by repair or at the Company’s option by replacement within a reasonable time after request in writing by the Customer, defects which appear in any software or equipment developed pursuant to the Proposal and arising from non compliance with specifications, faulty development or design, material or workmanship provided that:
6.2 That such software and equipment has been properly handled and used and has been installed, operated and maintained in accordance with instructions provided by the Company (if any); and
a) Such defects appear within 3 months of delivery; and
b) The Customer has notified the Company in writing within 7 days of the alleged defect first coming to the Customers notice; and
c) The Customer has stated the date and place of the purchase; and
d) The Customer has not carried out any repairs or other work on the software or equipment without the written consent of the Company.
6.3 The warranty provided under this clause 6.1 only applies to software and equipment capable of removal and return to the Company for repair.
6.4 Subject to any service contract between the Customer and the Company and with respect to software and equipment not capable of removal and return to the Company, the Company will use its best endeavours to remedy any defect by remote repair, advice or upgrade. In the event that such defect is not able to be repaired in the manner provided above the Company will, at the Customers request, undertake repairs at the cost of the Customer.
6.5 Where the Customer has notified the Company of an alleged defect, then if the Company so requires, the Customer will promptly and at its own expense, return the defective equipment or software to the Company.
6.6 The removal of the defective equipment or software and the installation of any repaired or replacement parts shall be performed by the Customer at its own expense.
6.7 The Company shall not be liable to any unauthorised repair or alteration to the software or equipment that has been performed by the Customer.
6.8 The warranty given under clause 6.1 does not apply to any third party hardware or software licences used in conjunction with the Company’s software and for the avoidance of doubt the Company shall not be responsible for any defect in such software or equipment or its own software or equipment arising as a result of defects in any third party hardware or software.
6.9 The Company does not warrant that:
a) The software is bug free; or
b) The use of the software will be uninterrupted; or
c) The software will meet the client’s requirements other than as set out in the specification.
6.10 If following acceptance by the Customer of the software, the software is found to have bugs and that the Customer notifies the Company of the bugs within three months of delivery, the Company must immediately rectify the bug or, if necessary to remedy the bug, the software at its own expense.
6.11 The Company will not be liable to remedy any defect in the software if:
a) The bug does not result in the performance of the software deviating from the specifications; or
b) The defect is the result of alterations or modifications to the software not authorised in writing by the Company; or
c) The bug is a result of use of the software and combination with equipment, software or services not authorised in writing by the Company; or
d) The bug is the result of the use of the software other than in the operating environment recommended by the Company or other than in accordance with the Company’s reasonable directions; or
e) The bug is the result of the failure of the Customer to meets its obligations under these conditions or any other agreement with the Company.
7. Exclusion of Warranties and Liability
7.1 Warranties of merchantability or fitness for a particular purpose and all other representations, statements, warranties or conditions whether implied by the Sale of Goods Act 1908 or made by any representative or agent of the Company or otherwise whether expressly or implied are hereby excluded.
7.2 The Customer acknowledges that the goods are being supplied for business purposes and as such the guarantees under the Consumer Guarantees Act 1993 do not apply pursuant to Section 43 of that Act.
7.3 The Company, directors, officers or staff shall not be liable to the Customer (whether in contract, tort or otherwise) for any loss (including but not limited to loss of profits and consequential loss) of any kind whatsoever arising out of the supply of or failure to supply software and equipment as set out in the Proposal.
7.4 If, notwithstanding 7.3, the Company, its directors, officers or staff are found to be liable to the Customer in any circumstances then the maximum combined amount such person shall be liable for to the Customer under any contract or contracts is an amount equal to the lesser of:
a) Purchase price of the software and consultancy services provided pursuant to the Proposal;
b) The cost of replacement or repair of any software services provided pursuant to the Proposal; and
c) The actual loss or damage suffered.
7.5 No action arising out of the agreed Proposal between the parties, regardless of form may be brought by either party more than two years after it becomes aware of the cause of the action.
8. Alterations to Specifications
8.1 If the Customer wishes to alter the specifications developed and agreed pursuant to the Proposal, the Customer shall make a written request to the Company for such alteration or amendment to be made and the alteration and amendment shall not form part of the Proposal and Assignment until agreed by both parties.
8.2 The Customer shall be responsible for all extra charges and time incurred by the Company as a result of the change to the specifications.
9.1 The Customer must ensure that the Company and its employees have full and safe access at all reasonable times to the Customers premises and relevant hardware and equipment to allow the Company to complete its tasks under the Proposal.
9.2 The Customer must ensure that the Company’s employees are given such information, facilities, services and accessories as the Company requires to enable the Company to comply with its obligations under the Proposal and these Conditions.
10. Acceptance Test
10.1 Acceptance testing may either be undertaken on the Company’s premises pursuant to acceptance tests developed by the Company or alternatively pursuant to agreement acceptance tests at the Customers premises. In the event the Customer is to undertake the acceptance testing, the acceptance testing must be initiated within 5 working day after delivery and installation of the software or on such other date as is stated in the specifications developed pursuant to the Proposal.
10.2 The Company shall be entitled to have representatives present at the acceptance tests conducted by the Customer on any software developed pursuant to the Proposal.
10.3 Acceptance testing is deemed to be completed successfully and the software accepted by the Customer if:
a) The software operates in accordance with test specifications; or
b) The Customer fails within 5 working days of the acceptance test to notify the Company of any faults or problems in the operation of the software and such faults or problems prevent the acceptance tests being successfully completed; or
c) The Customer fails to commence the acceptance test within times specified in the specification unless such failure is caused by the default of the Company;
d) The Customer makes commercial use of the product(s) or service(s) that are deliverables from the Assignment delivered by the Company.
e) The Customer notifies acceptance.
10.4 If the Customer considers that the software has failed to pass the acceptance test, then the Customer must notify the Company in writing of the reasons for such failure. The Company shall take all reasonable steps to correct any defect or modify or replace the software until such time as the software (and as appropriate, the system) successfully passes the acceptance test.
11.1 The Customer shall keep the Company indemnified against all costs, claims, demands, expenses and liabilities of any nature whatsoever, including without limiting the generality of the foregoing, claims for death, personal injury, damage to property and consequent loss, (including loss of profits) which may be made against the Company or which the Company may sustain, pay or incur as a result of or in connection with the use or the sale of the software or equipment unless such cost, claim, demand, expense or liability shall be directly and solely attributable to the negligence of the Company or the negligence of a duly authorised employee or agent of the Company.
12. Health and Safety
12.1 The Customer shall be responsible to ensure that all applicable health and safety regulations are observed, and other appropriate steps taken in relation to the storage, handling and use of the software and equipment and the health and safety of the Company staff working on the customer’s premises.
13. Termination of the Agreed Proposal
13.1 Either party may terminate a Proposal agreed between the parties before the completion of the work proposed in the Proposal, in case of breach of any of the Terms and Conditions by the other party. However, before terminating, both parties will negotiate in good faith and remedy the situation that has led to the breach in the first place. Termination of the agreed Proposal will be the last resort.
13.2 If the agreed Proposal is terminated for the Company’s breach, the Customer will only pay the Company for all the useful work and deliverables that the Customer can make use of.
13.3 If the agreed Proposal is terminated for the Customer’s breach, the Company is entitled to receive payment from the Customer for all the effort and deliverables provided by the Company till the date of termination.
14.1 These Conditions in conjunction with the Proposal represent the entire agreement between the parties and all other representations, warranties or promises whether verbal or written are hereby expressly excluded with the exception of any shrink wrap conditions relating to standard software as per clause 5.4.
14.2 These conditions may only be varied by agreement in writing between the parties by a duly authorised representative of both the Customer and the Company.
14.3 The conditions and Proposal shall be governed by the Law of New Zealand and the parties agree to submit to the jurisdiction of the New Zealand Courts.
14.4 The contents of the Proposal, these Conditions and any information exchanged between the parties as a result of the Proposal and these conditions, shall remain confidential between the parties, but the duty of confidence shall not extend to disclosure of the placement of the contract itself and its nature, or to any information already known to the recipient prior to disclosure, or lawfully received by the recipient from a third party, nor to information published at the date of such disclosure or subsequently through no fault of the recipient.
14.5 The Company reserves the right to subcontract the performance of this agreement or any part thereof to any other party or person it may determine.
14.6 The Customer shall not employ the staff and/or contractors working for the Company in any capacity without the express consent of the Company within two years of the termination/completion of the project. Similarly the Company shall not employ the staff and/or contractors working for the Customer in any capacity without the express consent of the Customer within two years of the termination/completion of the project.
14.7 If any condition or any part of any condition is held to be invalid or unenforceable, the validity or unenforceability shall be deeded and limited or modified to the minimum possible extent necessary to make the remainder of the conditions enforceable.
14.8 Neither party shall be in breach of these conditions if its breach is caused by an act of god, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining raw materials, energy or other supplies, labour disputes of whatever nature and any other reason beyond the control of either party. If either party is unable to perform its duties and obligations under the Proposal and Conditions as a direct result of any such reasons that party must give immediate notice to the other of such inability stating the reasons.
14.9 In the event of conflict between these Conditions and the Proposal, then the Proposal shall prevail.