Castle Software Ltd Terms and
Conditions
These Terms and Conditions set forth the
basis of any relationship between you ("The
Cient") and Castle Software Ltd
("Castle"). In the absence of
any other written agreement, these Terms and
Conditions shall be the sole legal agreement
between The Client and Castle. Subsequent
written agreements may supersede all or
part of these Terms and Conditions.
Scope
This agreement is for the supply of consulting services, computer software, web software and computer services (“Services”) as requested by the Client and provided by the Supplier.
It is agreed :
| 1 |
Suppliers Duties |
| The Supplier shall : |
| 1.1 |
Provide the Client with Services set out in the Schedule hereto or as otherwise requested in writing from time to time; |
| 1.2 |
Perform all Services in a prompt and professional manner, and shall utilise all skill-sets, technologies, experience and knowledge (excepting non proprietary intellectual property and knowledge that is otherwise covered by confidentiality agreements) to achieve the performance of Services within mutually agreed deadlines; |
| 1.3 |
Aim to deliver Services of the highest possible quality, in line with the Client’s requirements and meet deadlines as agreed between the client and the supplier; |
| 1.4 |
Attempt at all times to apply any Services in a manner that creates the minimum of interruption to the operations of the Client; |
| 1.5 |
Supply support Services via email or telephone as and when possible generally between 5:00pm and 7:00pm Monday to Friday NZT, and on weekends as mutually agreed between the Client and the Supplier. |
| 2 |
Subcontract |
| 2.1 |
The Supplier may subcontract the provision of Services. |
| 2.2 |
Should the Supplier subcontract the provision of Services the duties and responsibilities specified in Clauses 1, 3, 5.6, 6 of this agreement shall apply equally to the subcontractor as if the subcontractor were the Supplier. |
| 3 |
Client's Responsibilities |
| The Client shall : |
| 3.1 |
Provide all available resources to support research and other requirements as requested by the Supplier; |
| 3.2 |
Reasonably co-operate with the Supplier as and when the Supplier has any request whether they pertain to Services, or any other items which relate to the performance of this agreement; |
| 3.3 |
Meet all consideration requirements as invoiced by the Supplier from time to time. Consideration refers to the payment specification as set out in Clause 4, and any other consideration requirements as designated in this or other agreements that have been ratified by both parties. |
| 4 |
Consideration and Payment |
| The Client shall : |
| 4.1 |
Pay the Supplier for Services performed at the rates and amounts set out in the Schedule hereto or as otherwise agreed in writing by both parties. Any proposed changes to the Service rates and amounts will be advised in writing 30 (thirty) days prior to the change being made; |
| 4.2 |
Pay the Supplier any travel, accommodation or other disbursement costs the Supplier incurs while carrying out Services for the Client, in addition to the Service rates and amounts, provided that the Supplier has obtained prior approval from the Client for such costs; |
| 4.3 |
Pay the Supplier periodically as set out in the Schedule hereto or otherwise monthly, on invoice prepared by the Supplier, for all work carried out and disbursements incurred since the last invoice; |
| 4.4 |
Notify the Supplier in writing within 7 (seven) days of invoice of any dispute of the invoice or legitimate claim for failure by the Supplier to perform Services as specified; |
| 4.5 |
Make payment to the Supplier by direct bank deposit, to the account specified in the Schedule, within 7 (seven) business days of the date of the invoice from the Supplier. |
| 5 |
Intellectual Property |
| 5.1 |
All intellectual property provided by the Supplier to the Client remains the exclusive property of the Supplier unless otherwise agreed between the Supplier and the Client. |
| 5.2 |
For the purposes of this agreement ‘Intellectual Property’ shall be defined as any Services provided by the Supplier that are unique and/or distinctive to the Supplier, whether tangible or not, at the date that they were supplied to the Client. |
| 5.3 |
The Supplier grants the Client a nonexclusive license to use the software and Services provided by the Supplier for the term of this agreement. In particular the Client shall not have the right to sublicense the software or to reproduce or modify the software. |
| 5.4 |
The content and information displayed on web sites provided as a Service under this agreement remain the intellectual property of the Client. |
| 5.5 |
The software and software source code used to generate or display content and information displayed on web sites provided as a Service under this agreement remain the intellectual property of the Supplier. |
| 5.6 |
The parties agree that when this agreement terminates, any software, software listings, software source code. intellectual property or documentation relating to the Services supplied (‘Property’), where the respective parties do not own that Property, shall return the Property to the other party within 7 (seven) days and that they shall not retain any copies thereof. |
| 5.7 |
The Supplier warrants that it shall not pass to any third party individual or any group, any information, documentation or data files proprietary to the Client without the express written permission of the Client. |
| 6 |
Confidentiality |
| 6.1 |
The parties agree that under no circumstances will they use confidential information concerning the other party, its business or Clients, except for the purposes directly related to undertaking duties pursuant to this agreement. |
| 6.2 |
For the purposes of this agreement ‘Confidential Information’ shall mean any and all information of commercial value and not otherwise reasonably in the public domain. |
| 6.3 |
The parties agree to store any Confidential Information in a secure environment and undertake not to allow access to this information to any third parties without the express approval of the other party. |
| 6.4 |
The parties warrant that under no circumstances will they discuss or disclose the terms and conditions of this contract with any third party, without express written permission of the other party. |
| 7 |
Amendments |
| 7.1 |
The Client may at any time cancel or amend the uncompleted portion of any previously requested Services. |
| 7.2 |
All costs associated with the Services provided prior to the instruction to cancel or amend the uncompleted portion of any requested Services or ongoing charges associated with said Services remain payable in full. |
| 8 |
Termination |
| 8.1 |
This agreement shall remain in effect until services cease or this agreement is terminated. |
| 8.2 |
Not withstanding anything to the contrary in this agreement, either party may terminate this agreement for any reason by giving the other party 7 (seven) days written notice. |
| 8.3 |
All costs associated with Services provided prior to the date of termination or ongoing charges due up to the date of termination remain payable in full. |
| 8.4 |
Upon the termination of this agreement for any reason whatsoever, the parties shall return any and all Confidential Information to the other party and the obligations expressed in Clause 6 remain in perpetuity. |
| 9 |
Disputes |
| 9.1 |
Any dispute arising under this agreement or in relation to the Services to be provided under this agreement shall be submitted to arbitration in New Zealand under the Arbitration Act 1996. By agreement, the parties may first attempt to mediate any such dispute. |
| 10 |
Indemnification |
| 10.1 |
Neither party shall be liable for failure to perform its obligations if the failure results from force majeure, act of God, fire, explosion, industrial dispute, Act of Government such as change of legislation, regulation or order made, under legislative authority or anything beyond the party’s control. |
| 11 |
Limitation of Liability |
| 11.1 |
The Supplier shall not be liable for lost profits, lost business opportunities or any other indirect, special, punitive, incidental, or consequential damages arising out of or related to this agreement or the Services, even if the Supplier has been advised of the possibility of such damages, including but not limited to loss of data or loss or interruption of services or communications. Further, the Suppliers aggregate liability for direct damages arising under this agreement shall not exceed the amount of 50% of the total payments received from the Client for the last fully paid invoice under this agreement. |
| 11.2 |
The Supplier shall not be liable in any way for the quality, legality, fitness for purpose of any services or products displayed or provided or sold through any web site which forms all or part of the Services provided under this agreement. All such liability rests solely with the Client. |
| 12 |
Partial Invalidity |
| 12.1 |
If any provision of this agreement is held by a Court of competent jurisdiction to be invalid void or unenforceable the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way. |
| 13 |
Governing Law |
| 13.1 |
This agreement shall be construed in accordance with and shall be governed by the laws in force in New Zealand and each of the parties hereby irrevocably submit to the jurisdiction of the Courts of that jurisdiction. |
| 13.2 |
All amounts given are in New Zealand dollars unless specified otherwise. |
|
