1. Arise Obligations
1.1 Arise agrees to provide the Services to the Client as outlined in the Key Terms from the Commencement Date.
1.2. In carrying out the Services Arise will comply with all applicable Acts, rules, regulations and by-laws.
1.3. Arise agrees to provide the Client with updates as to the progress of the Services at any time as may be reasonably required by the Client.
1.4. Arise agrees to provide the Client with updates as to the progress of the Services at any time as may be reasonably required by the Client.
1.5. Arise expressly acknowledges and agrees that:
1.5.1. it has no authority to enter into any agreement or arrangement on behalf of the Client or to act as the agent or representative of the Client except as the Client may expressly agree in writing; and
1.5.2. it must not hold itself out, or make any representations, as having the authority to enter into, or bind the Client to, any agreement or arrangement with any third party.
2. Client Obligations
2.1. Client agrees to pay the Fees in accordance with the Service Milestones.
2.2. All Services provided by Arise are provided for lawful purposes only.
2.3. Arise reserves the sole right to determine what constitutes a violation of this clause.
2.4. Client warrants that it is the lawful owner and/or has the legal rights to use any materials supplied to Arise in relation to the Services.
2.5.1. Arise will notify the Client in writing as soon as reasonably practicable after becoming aware of such a Claim; and
2.5.2. the Client will, at its own cost and expense, take over dealing with the Claim; and
2.5.3. Arise will provide the Client with a reasonable level of assistance in relation to any Claim at the Client’s cost and expense.
3. Terms of Payment
3.1. On acceptance of the Services outlined in the Key Terms, a deposit invoice will be issued by Arise which must be paid before any work commences.
3.2. Upon completion of the Services, the final balance will be invoiced. It will be agreed whether there are Service Milestone payments in between on a case by case basis.
3.3. Unless otherwise agreed in writing, all invoices shall be paid within 14 days of the date of issue.
3.4. If either the Client, or someone acting as its agent, withholds information or is responsible for any delay in progress of the Services for a period of a month or more without a satisfactory explanation being communicated, then the full Fee is deemed payable within 60 days of the start of the delay.
3.5. If an account remains unpaid and a debt collection agency is engaged by Arise, the Client will be responsible for any collection costs. Invoices, excluding deposit invoices, incur an interest charge of 5% per month (compounding), from 30 days from the due date.
3.6. All quoted prices exclude GST. New Zealand residents will pay GST; GST does not apply to Clients based outside of New Zealand.
4. Intellectual Property
4.1. Unless otherwise agreed in writing between the parties, the following ownership arrangements for Intellectual Property (as defined in clause 4.5 below) will apply:
4.1.1. all Intellectual Property of a party or its licensors that is not developed, commissioned or created under this agreement, but is used for the purposes of this agreement (Background IP) will continue to be owned by that party or its licensors;
4.1.2. all Intellectual Property in any modifications, adaptations and additions to Background IP that are developed, commissioned or created under or in connection with this agreement (Modifications) will be owned by the owner of the relevant Background IP; and
4.1.3. subject to clause 4.1.2, all new Intellectual Property that is developed, commissioned or created under or in connection with this agreement (New IP) will be owned by the Client on its creation.
4.2. In all cases where the Client does not own or is not otherwise licensed to use any Intellectual Property supplied to the Client under this agreement, or used by Arise for the purposes of providing the Services and the Products, Arise grants to the Client:
4.2.1. a royalty-free, perpetual, irrevocable, non-transferable and non-exclusive licence for the Client to use, copy, modify and develop such of Arise’s Intellectual Property as is incorporated in the Products or otherwise supplied by Arise to the Client under this agreement, for the internal business and operational purposes the Client; and
4.2.2. a perpetual and irrevocable right to sub-license any supplier of goods and/or services to the Client to use, copy, modify and develop that Intellectual Property, for the sole purpose of supplying those goods and/or services to the Client.
4.3. Nothing in this agreement limits Arise’s right to use any ideas, concepts, methodologies, processes and know-how that are used, developed or created in the course of providing the Services and/or Products, provided that such use does not:
4.3.1. breach any confidentiality obligation owed by Arise to the Client; or
4.3.2. infringe any of the Client’s Intellectual Property rights.
4.4. Arise will defend and indemnify the Client (and its officers, employees and agents) against any cost (including legal fees) or expense arising from any claim, suit, action or proceeding (Claim) that the Services, Products, documentation or any other materials supplied by the Arise under this agreement infringes a third party’s Intellectual Property rights. In relation to the indemnity in this clause;
4.4.1. the Client will notify Arise in writing as soon as reasonably practicable after becoming aware of such a Claim;
4.4.2. Arise will, at its own cost and expense, take over dealing with the Claim on the Client’s behalf (but Arise acknowledges and agrees that the Client may appoint its own advisers in respect of any such Claim); and
4.4.3. the Client will provide Arise with a reasonable level of assistance in relation to any Claim at Arise’s cost and expense.
4.5. For the purposes of this Agreement, Intellectual Property means patents, registered designs, petty patents, utility models, trade marks (including logos and get-up), domain names, copyright, circuit layouts, rights in computer software and databases, rights in inventions, confidential information, trade secrets and all other intellectual property, in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world.
5.1. Unless the relevant party has the prior written consent of the other or unless required to do so by law:
5.1.1. Each party will preserve the confidentiality of all information (Confidential Information) of the other obtained in connection with this Agreement.
5.1.2. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
5.2. The provisions relating to Confidentiality and Privacy shall not apply to any information which:
5.2.1. is or becomes public knowledge other than by a breach of this clause;
5.2.2. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
5.2.3. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
5.2.4. is independently developed without access to the Confidential Information.
5.2.5. Arise will only access, collect, use, disclose, store, process, transfer or otherwise handle personal information as instructed by the Client, and only as strictly necessary to perform the Services, and in accordance with all applicable privacy legislation; and
5.2.6. Arise will take all appropriate technical and organisational measures against unauthorised or unlawful processing of the Client’s data (including personal information) and against accidental loss or destruction of, or damage to, the Client’s data.
5.3. Each party shall ensure that its employees are under equivalent obligations of confidentiality to those imposed on the parties by this clause 5 and shall use its best endeavours to ensure that no employee shall be in breach of such obligations.
6. Assignment and Delegation
6.1. Arise may not assign or transfer any of its contractual rights or responsibilities under this agreement to another party without the prior written consent of the Client.
6.2. The Client may not assign or transfer any of its contractual rights or responsibilities under this Agreement to another party without the prior written consent of Arise.
7. Limitation of Liability
7.1. Neither party will be liable for any indirect or consequential damage that may be incurred during and in completing the Services or in providing the product, including, but not limited to, loss of profit or (except as provided under clauses 2.5 and 4.4) claims against the other party by any third party.
7.2. Neither party (First Party) will be liable to the other party for any direct or indirect loss or damage arising from or in connection with any failure of the First Party to meets its obligations under this agreement where such failure is caused directly or indirectly by:
7.2.1. Any act or omission of the other party; or
7.2.2. an act of God, armed conflict, labour dispute, civil commotion, intervention of a government, inability to obtain labour, materials or manufacturing facilities, accidents, interruptions of or delay in transportation, or any other cause beyond the control of the First Party.
7.3. Subject to clause 7.4 if, regardless of the provisions of this Agreement, a party is found to be liable to the other party under this Agreement, then the liability for any single event or series of related events is limited to the Fees paid by the Client to Arise for the Services and/or Products.
7.4. The limitation in clause 7.3 will not apply to any liability arising under the indemnities in clauses 2.5 and 4.4 or any breach of clause 5.
8.1. This Agreement may be terminated by either Arise or the Client, with twenty working days’ written notice to the other party.
8.2. Should the Client enter liquidation or bankruptcy, or if the Client fails to meet any obligation under this Agreement, Arise reserves the right to terminate the Agreement and immediately cease to provide the Services without liability.
8.3. If the Client wishes to cancel the Services before completion, Arise will issue an invoice proportional to the amount of work already completed, as at the end of the notice period. If the total amount of work completed equates to less than the deposit paid by the Client, Arise will refund the portion of payment not used. If the total amount of work completed equates to more than what has already been invoiced, Arise has the right to invoice for the extra work completed.
9.1. If a dispute arises in relation to this Agreement, the parties will notify the other party of the dispute in writing. On receipt of such notification, the parties will work together in good faith to resolve any dispute or difference arising between them in connection with this Agreement. Pending resolution of a dispute, each party, to the extent it is able, will continue to perform its obligations under this Agreement.
9.2. If the parties cannot resolve the dispute by negotiation within 15 Business Days of a dispute being notified in accordance with clause 9.1:
9.2.1. the matter will be submitted to mediation in New Zealand; and
9.2.2. the mediation will be conducted by a mediator and at a fee agreed by the Parties. If the parties fail to agree within 10 Business Days the mediator and fee will be determined by the President of the Arbitrators’ and Mediators’ Institute of New Zealand. 9.3 If the parties cannot resolve the dispute within 20 Business Days after the commencement of mediation, the dispute will, at the election of either party (by written notice to the other party) be determined by a single arbitrator in accordance with the Arbitration Act 1996. The parties agree that all costs and expenses of the arbitration will be borne equally between the parties to the dispute.
9.3. Nothing in this Agreement prevents either party, at any time, from seeking urgent interlocutory relief from a court of competent jurisdiction in relation to any matter that arises under this Agreement.
10. General Provisions
10.1. Applicable Law: This Agreement is made in New Zealand and shall be subject to, governed by and interpreted in accordance with New Zealand laws. Any court proceedings relating to this Agreement will be heard by the domestic courts of New Zealand.
10.2. Non-waiver: Failure by any party to comply with the rights and/or obligations of this contract shall not constitute a waiver of any specific or general matters within this contract now or in the future. Any waiver of rights or obligations under this contract shall only become effective if the waiver is in writing, is signed by both parties, and is in regard to a specified right or obligation under this contract.
10.3. Contract Provisions: Should any specification of this contract be found to be illegal, invalid or unenforceable by a court of law, the legality, validity and enforceability of the remaining provisions of this contract shall remain unaffected, unless otherwise stated.
10.4. Notice: Each notice or other communication to be given under this Agreement will be:
10.4.1. in writing; and
10.4.2. sent by email or registered mail to the addresses of the Parties specified in or notified pursuant to this Agreement.
10.5. Notice will be deemed given:
10.5.1. in the case of email upon proof of completion of transmission if on a Business Day or, if sent after 5pm (in the place of receipt) or on a non-business day on the next Business Day after proof of completion of transmission is received;
10.5.2. in the case of registered mail, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party.
10.6. Enduring provisions: The following clauses survive termination of this agreement: Clause 3, Clause 4, Clause 5, Clause 7 and Clause 9.