AGREEMENT FOR THE SUPPLY OF PROJECT AND CONSULTANCYSERVICES BETWEEN
ITCO Solutions Limited (“ITCO, we or us”) AND (“you”)
We have the expertise and skills to provide you with software related services such as training, implementation, and development as well as general consultancy services. From time to time you may request that we provide such services to you which you may do by way of phone or e-mail. When we agree to provide those services for you we will do so subject to the following terms and conditions and at our current charge out rates or at such other rates as we otherwise agree.
We will carry out the Services with all due care and skill in a professional manner and in compliance with all relevant laws in New Zealand. We will use our best efforts to meet any specified timeframes.
In providing the Services, we may need your assistance, information or access to your premises or equipment. You agree that you will:
(a) promptly provide us with any required material, data, or other information;
(b) provide such assistance as we reasonably request;
(c) allow access to your premises or equipment (remotely if applicable); and
(d) comply with any reasonable instructions we give you.
If you fail or delay in providing us with any of the foregoing we will not be responsible for the resulting failure or delay in providing the Services. If we need access to your premises we will observe all of your operational requirements (including health and safety procedures) of which you notify us.
Unless we have agreed otherwise, we will invoice you monthly for the Services and any expenses we have properly and reasonably incurred in providing the Services. You will pay the invoiced amounts by the 20th day of the month following receipt of the invoice. All payments shall be made without deduction or set-off except as required by law.
You agree to pay interest on any overdue amount at the rate of 2% per month (compounded monthly) until the outstanding amount is received by us whether that is before or after judgment of a court for the outstanding amount. You will also pay to us all our costs (including solicitor’s costs) of collecting any outstanding amounts. In addition to any other remedies we may have, we may suspend any ongoing work until payment is received or this Agreement is terminated.
We will at all times during the term of this Agreement, treat as confidential all non-public information and material about your business that is disclosed to us or we acquire as a result of this Agreement and we shall not, except as required by law, publish, release, or disclose the same to any third party without your prior written consent.
You will retain all rights in any data or information you provide to us. You warrant to us that your use and storage of such data and information will not infringe the rights of third parties.
If we develop Intellectual Property in the course of carrying out any Services for you, that Intellectual Property will belong to us. If the Services involve the development of software or modifications or additions to our software made specifically for you, we may be able to make separate arrangements for you to have exclusive rights to those developments. When providing consultancy services, we may prepare a report for you of findings, advice and/or recommendations. You may use any such reports for your internal business purposes but will not make any reports available to anyone else.
Our liability (whether in tort, for breach of contract or otherwise) to you arising out of all claims for any loss or damage in respect of any Services will not exceed, for any one incident or series of connected incidents, an amount equal to the fees actually paid by you in respect of the relevant Services. We will not be liable in any event for loss of profits or business or any indirect, consequential or special loss or damage suffered or incurred by you in relation to the Services.
This Agreement commences on the date that both of us have signed this Agreement and, unless terminated earlier as set out below, continues until completion of the Services. This Agreement or the provision of any individual Services may be terminated by either of us on written notice if the other is:
(a) in material breach of this Agreement and the breach is not remedied within 30 days of notice; or
(b) in bankruptcy, liquidation, receivership, insolvency, or ceases to carry on business or makes any composition or arrangement with its creditors; or
(c) affected by an Excusable Event continuing for 90 days or more.
Either of us may terminate this Agreement on 30 days written notice to the other for any reason. If you terminate this agreement you will pay us for all Services provided and expenses incurred to the date of termination.
Termination will not affect the rights or obligations of the Parties accruing prior to or on termination or which by their nature are intended to survive termination such as confidentiality and limitation of liability.
Without preventing either of us from seeking immediate injunctive relief in the case of any breach or threatened breach of this Agreement, any dispute arising in relation to this Agreement will be dealt with in accordance with the following procedure:
(a) Negotiation: On receipt of a notice from one of us claiming that a dispute has arisen, we will both make genuine efforts to resolve the dispute by negotiation between us.
(b) Mediation: If we fail to negotiate a resolution to the dispute within 14 days of receipt of the notice, we agree to co-operate with one another in seeking the assistance of a third party mediator conversant with the issues concerned to assist in resolving the dispute. The costs and expenses of the mediator shall be shared by us equally.
All representations, conditions and warranties (whether express or implied, statutory or otherwise and including warranties as to the merchantable quality or fitness for any particular purpose of the Services or deliverables) are expressly excluded except as expressly set out in this Agreement.
Agreement means the first page of this Agreement and the details, fees and timing of any Services we agree in writing to provide you with;
Excusable Event means circumstances beyond the reasonable control of one of us;
Intellectual Property means any intellectual property, including copyright, rights in inventions (including patents and patent applications), trademarks, brand names, plant variety rights, registered designs, know-how, trade secrets and similar rights, which may arise from intellectual activity; and
Services means any Project and Consultancy services that we agree to provide to you.
Neither of us may assign this Agreement or any of our rights and obligations under this Agreement, without the prior written consent of the other (which may not be unreasonably withheld).
This Agreement constitutes the entire Agreement between us in respect of the Services and there are no representations, understandings or Agreements relating to the Services or this Agreement matter which are not fully expressed in this Agreement.
ITCO reserves the right to review and make change to these terms and conditions at any time.
We may engage subcontractors to perform any of our obligations under this Agreement but we will not be relieved of those obligations as a result of subcontracting them.
No waiver of any breach of this Agreement will be deemed to be a waiver of any other or any subsequent breach. The failure of either of us to enforce any provision of this Agreement at any time will not be interpreted as a waiver of the provision.
This Agreement shall be governed by the law of New Zealand and each of us submits to the non-exclusive jurisdiction of the courts of New Zealand.
Any notice given under this Agreement will be in writing delivered to the relevant party, sent by post, or facsimile transmission at such address or number as may be notified in writing by each of us to the other from time to time. Any such notice will be deemed received at the time when the same is handed to or left at the address of the party to be served and if served by post 3 days after the day of posting and if served by fax on the day of sending to the correct fax number.
If you issue a purchase order in respect of the Services the terms of this Agreement will prevail over the terms of any such purchase order.