Terms and Conditions

1. Introduction:

These General Terms and Conditions set forth the terms and conditions under which Leading IT shall provide professional services to the Client. Leading IT shall provide “Services” and “Deliverables” as provided in the Statement of Work set out in Part A of this Agreement (SOW). The SOW includes, among other terms, a specific description of the Services or Deliverables to be delivered by Leading IT, the Functional Specifications which the Deliverables are required to

2. Fees and payment terms:

The fees payable for Leading IT’s professional services shall be as set out in the SOW and payable in accordance with the payment terms set out therein. All payments shall be made by Client to Leading IT in New Zealand dollars within thirty (30) days from the invoice date. If any amounts are unpaid at 60 days following their due date, then without limiting any other rights Leading IT may have, Leading IT may pass the debt to any agency for collection and the Client shall be liable for the collection agency’s costs on top of the unpaid amount(s). All fees are exclusive of duties and taxes, and the Client shall be responsible for such duties and taxes (other than taxes on Leading IT’s income). The Client will not be entitled to withhold payment or to make any deductions or set-off from payments due without the prior written agreement of Leading IT.

3. Services and Deliverables:

Leading IT will perform the Services, and deliver the Deliverables, in accordance with this Agreement.

4. Client Responsibilities:

The Client will:
(a) provide to Leading IT, all content, instructions and other information that is reasonably necessary for Leading IT to perform its obligations under this Agreement; and

(b) comply with the terms of this Agreement, including in relation to the payment of fees as they fall due.

5. Intellectual Property Rights:

(a) Definition: In this Agreement, “Intellectual Property Rights” means all copyright, trade and service marks, trade names, trade secrets, confidential information, patents and all other intellectual property rights of whatsoever nature.

(b) Leading IT Products: Leading IT shall retain all rights, title and interest in any and all Leading IT products existing as at the date of this Agreement or developed independently of the Services provided to the Client including, without limitation, software, code libraries, data, plans, specifications, reports, designs, technological “know how”, documentation, deliverables and other information used or in any manner employed by Leading IT in the provision of Services hereunder (Leading IT Products). Leading IT grants to the Client a licence to use the Leading IT Products to the extent they are incorporated in the Deliverables in accordance with clause 6 below.

(c) New IP: Subject to clause 5(a), all Intellectual Property Rights created or developed by Leading IT in the course of performing the Services and incorporated in the Deliverables (New IP)

6. Licence:

Any Leading IT Products made available to the Client in connection with Services or Deliverables are provided to Client solely for the Client’s internal use on a non-transferable, non-exclusive, world-wide and royalty free license upon payment in full for all fees and related expenses due to Leading IT hereunder.

The Client will comply with any reasonable requirements from time to time stipulated by Leading IT in relation to the use of such Leading IT Products and not itself, nor permit any other person, company or business to:
(a) copy, reproduce, translate, adapt, vary, modify, decompile or reverse assemble any Leading It software; or

(b) make available the Leading IT Products, the Services or Deliverables to any other person, company or business, except as agreed to by Leading IT in writing.

7. Warranty:

Leading IT warrants that:
(a) it has the right to provide the Services offered under this Agreement;

(b) such Services will be performed with reasonable skill and care by personnel with appropriate skills and experience; and

(c) the Deliverables will comply with the Functional Specifications for a period of 90 days following delivery to the Client.

In the event of a breach of warranty, Client’s sole remedy shall be the re-performance of the Services, or if Leading IT fails to re-perform as warranted, upon Client’s return of any affected Deliverables Leading IT shall refund the portion of the fees paid for the deficient Services or Deliverables. To the maximum extent permitted by law, Leading IT makes no other warranty in relation to the Services or Deliverables, including without limitation any implied warranty of satisfactory quality, non-infringement or fitness for a particular purpose.

8. Disclaimer:

Except as expressly stated in this Agreement, all warranties and conditions whether express or implied by statute, common law or otherwise that are able to be lawfully excluded are hereby excluded. In particular, and without limitation, the Client acknowledges and agrees that it is entering into this Agreement and the transactions contemplated by it for the purposes of trade and agrees that it is fair and reasonable that neither the Consumer Guarantees Act 1993 nor sections 9, 12A, 13 or 14(1) of the Fair Trading Act 1986 (or any BF\56086637\1 | Page 5 comparable consumer protection legislation in any other jurisdiction) shall apply to this Agreement or the transactions contemplated by it. The Client acknowledges that it has not relied on any representation made by Leading IT which has not been stated expressly in this Agreement.

9. Liability:

To the maximum extent permitted by law:
(a) in no event shall Leading IT be liable to Client for indirect, special or consequential damages or loss, or for any loss of profits, loss of revenues, loss of business opportunity, or loss or corruption of data, howsoever arising, even if Leading IT has been advised of or should have known of the possibility of such damages or loss; and

(b) Leading IT’s maximum aggregate liability to the Client, whether in contract, tort, or from any negligence, misrepresentation or other act or omission by Leading IT or otherwise, is limited to the amount of fees actually paid by the Client to Leading IT under this Agreement.

10. Term:

This Agreement shall commence on the Effective Date and shall remain in force for the duration of the project specified in the SOW or until the Services described in the SOW are completed, unless terminated earlier in accordance with its terms.

11. Termination for breach:

If a party is in breach of any term of this Agreement (including without limitation, clause 2), then the other party may immediately terminate this Agreement or any SOW on notice in writing (in addition to any other rights it may have under this Agreement).

12. Termination for other causes:

Leading IT may immediately terminate this Agreement or any SOW if the Client:
(a) is or is deemed to be insolvent, liquidated or bankrupt, or if any resolution is passed or proceedings are commenced, for its amalgamation with any company, or liquidation or bankruptcy;

(b) makes an assignment for the benefit of or makes any arrangement or composition with its creditors; or

(c) goes into receivership or has a receiver, trustee and/or manager (including a statutory manager) appointed in respect of all or any of its property.

13. Consequences of termination:

Upon the expiry or termination of this Agreement:
(a) the Client must immediately pay to Leading IT all monies due to Leading IT for Services performed up to the date of such expiry or termination; and

(b) clauses 2, 5, 6, 8, 9, 14, 16, 17 and 18 shall continue to apply after the expiry or termination of this Agreement.

14. Information and Confidentiality:

Subject to clause 18(d), each party will keep all information provided by the other party (including any password and the Documentation) which is marked confidential or which by its nature can be reasonably considered to be confidential, in strictest confidence. This obligation will not apply to information which is in the public domain otherwise than as a result of a breach of this clause 14, or that is required by law to be disclosed.

15. Force majeure:

Other than payment obligations, a party will not be liable for non-performance caused by events beyond its control, if the party makes reasonable efforts to perform.

16. Notices:

Any notice required to be given under this Agreement must be in writing and is deemed to be properly served if sent to the address of the recipient specified on the SOW or such other address as either party may from time to time notify for such purpose. Any notice sent by post or document exchange is deemed to have been properly served two days after the date upon which it was sent. Notices sent by:
(a) email are deemed to have been received at the time of sending, unless the sender receives an out-of-office notification or delivery error message; and

(b) courier or delivered by hand are deemed to have been received on the date of delivery; in each case if the email is sent, or delivery is made, before 5pm on a working day in the area in which the notice is received, and otherwise on the next working day.

17. Disputes:

If the parties are unable to agree on any matter relating to or arising under this Agreement, the matter shall be dealt with in accordance with the following dispute procedure:
(a) If any dispute arises between the parties under or relating to this Agreement, the parties shall in good faith use their best endeavours to resolve the dispute by negotiation.

(b) If no satisfactory resolution is reached within fourteen days after the dispute has been notified by a party in writing, either party may by notice to the other party refer the dispute to mediation. The mediation will take place in Auckland, New Zealand and be conducted under the LEADR New Zealand (LEADR) standard mediation agreement. If the parties cannot agree on a mediator or the mediator’s fees, the mediator shall be appointed or the fees set by the chair of LEADR (or his or her nominee) at the request of either party.

(c) If no satisfactory resolution is reached, either party may commence court proceedings or an alternative dispute resolution process.

(d) While any dispute remains unresolved each party shall continue to perform its obligations under this Agreement to the extent practicable, but without prejudice to their respective rights and remedies.

(e) Nothing in this clause will preclude a party from seeking interlocutory relief before a court.

18. General:

(a) Precedence: In the event of any conflict between these General Terms and Conditions and a SOW, the SOW shall prevail.

(b) Waiver: No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

(c) Assignment: Leading IT may at any time assign, novate, or otherwise transfer its rights, interests, or obligations in this Agreement to any person, company or business without the consent of the Client. The Client may not assign, novate, transfer or sublicense any of its rights, interests, or obligations under this Agreement without the prior written consent of Leading IT.

(d) Subcontractors: Leading IT may, without the consent of the Client, subcontract the performance of any of its responsibilities under this Agreement, provided that it shall remain responsible for the acts and omissions of those subcontractors.

(e) Entire Agreement: This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements or representations written or oral with respect to its subject matter.

(f) Governing Law: This Agreement is governed by New Zealand law and the parties submit to the exclusive jurisdiction of the New Zealand courts.

(g) Variation: No variation to this Agreement will be effective unless it is in writing and signed by both parties.

(h) Severance: If any provision or of this Agreement is or becomes unenforceable or illegal it shall be deleted and the remainder of this Agreement will continue in full force and effect.

(i) Counterparts: This Agreement may be executed in any number of counterparts, each of which when executed or delivered will together constitute the one Agreement.

(j) Third party rights: No one other than a party to this Agreement, their successors or assigns, shall have any right to enforce any of its terms.

(k) No partnership: Nothing in this Agreement is intended to, or shall be taken to, establish any partnership, joint venture, or agency relationship between the parties. The parties are independent contractors.