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These Terms of Trade are between The Development Collective Limited (referred to herein as “we“, “us“, and “our“) and our client who we will perform services for (referred to herein as “you” and “your“).
We will provide you with certain services as agreed with you (“Services“) in accordance with these Terms of Trade and any other terms agreed with you in writing.
By ordering the Services from us, you agree to these Terms of Trade.
We will:
perform the Services with reasonable skill, care and diligence in a professional manner;
endeavour to ensure that the Services are performed in accordance with any time frames agreed in writing with you;
protect your privacy and confidentiality (subject to clauses 3 and 4); and
liaise with you during the course of performing the Services in accordance with your reasonable requirements.
You will give reasonable assistance to enable us to perform the Services and you agree to promptly provide any information required by us to carry out the Services.
Payment
Our fees will be charged based on the fee structure we agree with you (which may, for example, include hourly rates, fixed fees or capped fees).
Unless we state otherwise, our fees do not include goods and services tax levied or imposed under the Goods and Services Tax Act 1985 (“GST“) and disbursements, which are payable by you.
You are required to pay our fees and expenses and the GST on them within 14 days of the date of our tax invoice to you (“Due Date“). You must pay interest on overdue payments at a rate of 2% per month calculated on a daily basis from and including the Due Date.
Payment of all amounts shall be without set-off or deduction of any kind.
If a dispute arises in relation to fees, you may not use any of the materials provided by us in relation to the Services for any purpose until the dispute is resolved and we will not be liable for any losses suffered by you or any other person as a result of such inability to use those materials.
Privacy and Creditworthiness
You authorise us:
to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness;
to disclose information about you to such persons as may be necessary or desirable to enable us to exercise any power or enforce any of our rights under these Terms of Trade.
If you are a company or other incorporated entity, then the persons who enter into these Terms of Trade on your behalf personally guarantee the performance of your obligations under these Terms of Trade and will be jointly and severally liable with you for the payment of any amounts due to us under these Terms of Trade.
Confidentiality
Any information provided by a party to the other in connection with these Terms of Trade or the Services is confidential. Each party agrees not to use or disclose confidential information of the other party without that other party’s prior written consent. It will not be a breach of this clause for a party to use information to the extent required to perform its obligations under these Terms of Trade or to disclose information to the extent required by law (provided it has given the other party reasonable prior notice of the disclosure).
This clause 4 does not apply to information which:
is or becomes publicly available without breach of the obligations under this clause; or
a party can prove it independently created or acquired without the use of the other party’s confidential information.
Intellectual Property
All intellectual property rights (including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations) (“Intellectual Property“) owned by one party at the date that these Terms of Trade come into effect will continue to be owed by that party.
We are, and will remain, the exclusive owner of all Intellectual Property rights and interests in (together, the “Licensed IP“):
the Services, any materials that we provide in relation to the Services and any other work performed by us for you; and
our artistic styles, methods of working, techniques, ideas, skills and know-how.
We grant you a non-exclusive and non-transferrable licence to use the Licensed IP solely for the purposes of the project in relation which the Services are provided (“Licence“). Any future work to be carried out in relation to the project that makes use of any of the Licensed IP will require our consent.
The Licence is conditional upon you complying with your obligations under these Terms of Trade, including payment of all amounts owing to us.
If these Terms of Trade (and our engagement in relation to the Services) are terminated before completion of the Services, then the Licence will only apply in respect of materials that have been completed prior to such time. Incomplete materials cannot be used without our prior consent.
Upon completion of the Services or termination of these Terms of Trade, you may retain one copy of any completed materials provided by us in relation to the services in printed or non-editable electronic format. We are not required to provide any materials in editable electronic format.
You must not:
attribute the Services, or any materials provided in relation to the Services, to anyone other than us; or
remove any of our trade marks, signatures, logos or similar from the Services or any materials provided in relation to the Services.
If any Services are to be undertaken based on your designs or other Intellectual Property or other information provided by you:
you warrant that the performance of the Services by us will not infringe any third party’s Intellectual Property rights and you indemnify us against any loss, liability, costs and expenses in the event of any claim being made that the Services infringe any Intellectual Property rights or other rights of any other person; and
we are entitled to rely on those designs or other Intellectual Property or information, and we will have no responsibility in relation to them.
Limitation of Liability
You agree that to the extent that you are receiving the Services as part of your business, the Consumer Guarantees Act 1993 does not apply.
We agree, and you agree, that, to the maximum extent permitted by law, sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply to these Terms of Trade and the Services.
To the extent permitted by law, we will not be liable for any indirect or consequential losses, or any loss of profits, income, revenue or reputation whether in contract, tort (including negligence), or otherwise.
To the extent that we are liable for any reason for any loss suffered or liability incurred by you whether in contract, tort (including negligence), or otherwise, such liability is limited to the actual amount paid by you to us for the Services in the 12 months prior to the relevant liability arising.
We will not be liable for any delay or failure to perform the Services if the cause of delay or failure is beyond our control.
Without limiting any defence a party may have at law, no claim may be brought in relation to the Services or these Terms of Trade after the date that is six years from the earlier of:
the date of these Terms of Trade; and
the date of the act or omission giving rise to the relevant claim.
If you become aware of any problem, default or defect in the Services or any of the materials we provide to you, you must notify us as soon as reasonably practicable and, in any event, no later than 30 days after you become aware of it. If you fail to notify us within this time period then our liability will be reduced to the extent we are prejudiced by your failure to do so.
In the event that we are liable to you, under the Terms of Trade or otherwise, and you or a third party has contributed to the relevant loss, then we will only be liable to the extent that we contributed to that loss.
Default
In the event that:
you breach your obligations under these Terms of Trade (including, without limitation, by failing to pay any amounts due to us by the Due Date); or
we believe you are insolvent or bankrupt or are unable to pay your debts as they fall due or a receiver, liquidator, administrator or similar official is appointed in respect of you or your assets; or
you neglect or fail to carry on your business to our reasonable satisfaction, or if there is a significant deterioration in your trading or asset position,
we may do one or more of the following:
suspend the Services and withhold any materials to be provided in relation to the Services indefinitely or for a specified time or, where the default relates to a failure to pay any amounts due by the Due Date, until such amounts are paid in full (including any default interest and costs incurred by us in relation to such suspension). We will not be liable for any losses suffered by you or any other person as a result of such suspension;
charge default interest in accordance with clause 2.3 (but only in relation to a failure by you to pay any amounts due to us by the Due Date);
immediately terminate these Terms of Trade (and our engagement in relation to the Services) by notice in writing to you;
require you to pay (and you agree to pay) for all collection costs and/or legal costs as between solicitor and client incurred by us as a consequence of an event of default or recovering monies howsoever owing by you or exercising, enforcing or attempting to enforce our legal rights or protecting any of our interests, under or in connection with these Terms of Trade.
Termination
Either party may terminate these Terms of Trade (and our engagement in relation to the Services) by giving one month’s written notice to the other party.
In the event that these Terms of Trade are terminated (for any reason whatsoever), you must:
return all of our confidential information to us, including any materials specified by us (subject to clause 5.6);
immediately pay us all outstanding amounts for which we have issued you an invoice together with any default interest accrued on those amounts; and
in respect of any invoices that we issue to you after termination in connection with Services performed before termination, immediately pay us the amounts specified in such invoices.
Clauses 4 (Confidentiality) and 5 (Intellectual Property) shall survive termination of these Terms of Trade.
General
Notices: Any notice to a party may be posted, or sent by email to that party in accordance with the contact details provided by that party from time to time.
Assignment: You must not sub-contract or assign any of your rights, powers or obligations under these Terms of Trade without our prior written consent.
Sub-contracting: We may sub-contract any of our obligations under these Terms of Trade without your consent, provided that we will remain responsible to you for any acts or omissions of any such sub-contractors.
Construction Contracts Act: Where these Terms of Trade constitute a construction contract for the purposes of the Construction Contracts Act 2002, we may, at our discretion, render invoices in the form of payment claims.
Health and Safety: We will not assume any duty imposed on you under the Health and Safety at Work Act 2015 and, for the purposes of that Act, you agree that we will not at any time have management or control of the relevant project site (or any site other than our own premises).
Severability: If any provision of these Terms of Trade are, or become, unenforceable, illegal or invalid, it shall be deemed to be severed from these Terms of Trade without affecting the validity and enforceability of the remainder of these Terms of Trade.
Waiver: Any delay, failure or forbearance by any party to exercise (in whole or part) any right, power or remedy under, or in connection with, these Terms of Trade shall not operate as a waiver of such right, power or remedy. A waiver of any breach of any provision of these Terms of Trade shall not be effective unless it is in writing and signed by the relevant party.
Jurisdiction: These Terms of Trade are governed by and construed in accordance with the laws of New Zealand and the parties agree to submit to the non-exclusive jurisdiction of the courts of New Zealand for any disputes or proceedings arising in connection with these Terms of Trade.
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