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Client terms and conditions

INTRODUCTION
1. When these terms apply. Except where we have expressly stated otherwise in writing, these Terms and Conditions apply to the supply of all services, and related documentation and materials that Symbiont Ltd provides or makes available to You anytime whether now or in the future.
2. The components of this Agreement. This Agreement comprises the following which, in and to the extent of any conflict or inconsistency, shall be interpreted in the following descending order of priority (from high priority to low priority):
  1. these Terms and Conditions;
  2. the Contract;
  3. the relevant components of the Service Description.
3. Definitions. In this Agreement:
  1. “Charges” means the charges payable for the provision of the Services;
  2. “Contract” means the document entitled Contract as supplied to You by Symbiont Ltd.
  3. “Services” means the Services selected by You on the Order Form and as described in the Service Description (which may include development, consultancy), and includes providing access to the Software on the terms of this Agreement.
  4. “Terms and Conditions” means clauses 1. to 8. of this document (inclusive).
SERVICE PROVISION
1. General. In return for Your payment of the Charges, Symbiont Ltd will provide the Services to You for the relevant period set out in the Contract and subject to the terms of this Agreement.
2. Service levels. If the Service Description contains any levels of performance or service in relation to the Services these are targets only and Symbiont Ltd is responsible only for using its reasonable endeavours to meet those targets.
3. Support. If Symbiont Ltd provides You with any support or remedial services under this Agreement it will, subject to clause 2.iv., use its reasonable endeavours (without incurring any material additional costs) to try and resolve any problems with the Services but does not guarantee or represent that it can fix any problem You may experience.
4. Excluded support. Symbiont Ltd is not obliged to provide You with support or remedial services if the problem You are experiencing is caused by:
  1. any software or services that Symbiont Ltd has not supplied;
  2. any loss of or damage to data; or
  3. Your negligence, or failure to comply with this Agreement.
5. Additional work. If You wish Symbiont Ltd to perform any service which is not part of the Contract, Symbiont Ltd may perform that service at its sole discretion, in which case Symbiont Ltd is entitled to additional charges, at its then standard rates. All additional charges must be paid by You on the same payment terms as are set out in clause 3.ii.
6. Backups. You must keep and maintain Your own copies and backups of Your Content.
7. Breach. If You are in breach of any of Your obligations in this Agreement, then, without prejudice to any other right or remedy of Symbiont Ltd, Symbiont Ltd will be entitled to charge You for staff time engaged on rectifying any resulting problems at Symbiont Ltd’s then current rates.
8. Indemnity. Without limiting any other right or remedy of Symbiont Ltd, You agree to fully indemnify and keep indemnified Symbiont Ltd, and Symbiont Ltd’s directors, employees, and agents, against all claims, proceedings, actions, liabilities, damages, losses, costs and expenses (including full legal costs) arising out of or in any way connected to Your business or Your use, or anyone else’s use, of Your Website, the Software, and/or the Services, any breach by You of this Agreement, or anything else You do or do not do in relation to Your Website (in each case a “Claim”). This includes any Claim that arises because of any problem with the Services.
CHARGES
1. Payment. You will pay Symbiont Ltd the Charges for the Services at the rates and on the terms set out in clause 3.ii. and in the Contract. All Charges are exclusive of GST.
2. Payment terms. All invoices are payable 7 days from the date of the invoice. If You do not pay by the due date You will, if asked by Symbiont Ltd: a. pay interest on the amount due from the due date for payment until full payment (including interest) at the rate of 2% above the overdraft interest rate charged by Symbiont Ltd’s primary bank; and b. pay all expenses (including legal costs on a solicitor-client basis) incurred by anyone in the recovery of any monies that You owe to Symbiont Ltd.
INTELLECTUAL PROPERTY
1. Symbiont Ltd IP. Symbiont Ltd own all rights title and interest (including intellectual property rights) in and to the Services, documentation, materials, know how, ideas and concepts supplied or made available to You under or in relation to this Agreement (collectively called “Symbiont Ltd IP”). All modifications, adaptations, developments or improvements to any Symbiont Ltd IP created in relation to this Agreement, shall, as it is created, become the sole and exclusive property of Symbiont Ltd.
2. The intellectual property rights for any original work arising from services directly purchased under this Agreement will automatically vest in the Client.
3. Notwithstanding clause 4.ii., Symbiont Ltd may freely use in any way any ideas, concepts, know-how or techniques which it learns from You or Your providers as a consequence of providing the Services, provided that such use does not breach clause 8.ii.
4. Other than as set out in these Terms and Conditions neither party obtains under this Agreement any rights, title or interest in any of the other party’s, or any third party’s, intellectual property.
WARRANTIES AND DISCLAIMERS
1. Symbiont Ltd’s warranty: Symbiont Ltd warrants that it will use reasonable endeavours to ensure that the Services will remain in substantial conformance with the Contract Description.
2. Nature of the Services: Because of the nature of the Services, and the involvement of third parties, Symbiont Ltd cannot always control the quality of the Services. Therefore, in supplying the Services Symbiont Ltd does not represent or warrant that all problems can or will be corrected. Further, You acknowledge and agree that the actions or inactions of third parties may also have a detrimental effect on the Services You receive, and that Symbiont Ltd is not liable or responsible for such effects.
3. Third Party Software. Sometimes in providing You with Services Symbiont Ltd will use or recommend to You products, services, software, documentation or information that are not Symbiont Ltd’s (“Third Party Products”). However, because Symbiont Ltd does not fully control these Third Party Products it does not take any responsibility or liability (however arising) for any Third Party Products (including their suitability, compatibility, quality, availability and timeliness).
4. Consumer Guarantees Act: You are acquiring the Services for the purposes of a business and accordingly the provisions of the Consumers Guarantees Act 1993 do not apply.
5. Excluded warranties: Except as set out in this Agreement, all representations and warranties, express or implied, are excluded to the maximum extent allowed by law.
LIMITATION OF LIABILITY
1. Symbiont Ltd and its suppliers, directors, employees and agents (“Related Parties”) will not be liable to You, or any third party, for any:
  1. loss or damage to information or data from any cause;
  2. breach of security or privacy;
  3. loss of profit, opportunity or saving;
  4. incidental, indirect, special or consequential loss or damage.
2. In any event, if Symbiont Ltd or its Related Parties are liable to You for any reason, and that liability has not otherwise been excluded by this Agreement, then the maximum aggregate liability of Symbiont Ltd and its Related Parties to You arising out of all claims for loss and/or damages for any cause will under no circumstances exceed the value of the fees paid by You to Symbiont Ltd in the 12 months prior to the time that any liability first arises.
3. The limitations and exclusions of liability in this Agreement shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
4. Symbiont Ltd will not be responsible or liable for any failure or delay to perform its obligations due to any event, circumstance or person beyond its reasonable control or any failure by You to perform any of Your obligations under this Agreement. In such circumstances, and without limiting any other right or remedy of Symbiont Ltd, Symbiont Ltd is entitled to recover from You any reasonable additional costs of fulfilling its obligations under this Agreement.
SUSPENSION AND TERMINATION
1. Right to suspend Service. Symbiont Ltd is entitled to restrict or suspend all or any part of the Services immediately if: a. deemed reasonably necessary by Symbiont Ltd in order to protect the proper interests of Symbiont Ltd; b. You are behind in Your payment of Symbiont Ltd’s Charges; or c. You are in breach of this Agreement. If practicable and depending on the nature of the reason for such restriction or suspension, Symbiont Ltd may, in its absolute discretion, give You an opportunity to remedy the situation. In such case, if You remedy the situation, Symbiont Ltd will promptly restore the Services. During any period of restriction or suspension You are still obligated to pay Symbiont Ltd’s Charges on the terms set out in clause 3.ii. (Payment terms). This right of restriction and suspension is in addition to, and does not prejudice, any other right or remedy that Symbiont Ltd may have under or in relation to this Agreement.
2. Early termination of agreement. You may terminate this Agreement at any time, on 60 days’ prior written notice provided that You have first paid in full all of the Charges then due to Symbiont Ltd plus all penalty payments for early termination, as detailed in the Contract.
3. Symbiont Ltd’s right to terminate immediately. Symbiont Ltd may terminate all or any part of this Agreement immediately by notice in writing if:
  1. any Charges owing to Symbiont Ltd are overdue by more than 2 months;
  2. You are in material breach of this Agreement.
4. Right to terminate on liquidation etc. Either party may terminate this Agreement by providing written notice to the other party if the other party has entered into receivership, liquidation or bankruptcy, or has entered into a compromise or composition with its creditors.
5. Payment on termination. If Symbiont Ltd becomes entitled to terminate this Agreement for any reason, any sums then due to Symbiont Ltd will immediately become payable in full.
6. Effect of termination. Termination or cancellation of this Agreement shall not:
  1. relieve either party from any right, liability, or claim that has accrued before the date of termination or cancellation; or
  2. affect the provisions of this Agreement which expressly, or by their nature, survive termination or cancellation (including clauses 5.iii. (Third Party Software), 2.viii. (Indemnity), 4. (Intellectual Property), 6. (Limitation of Liability), 7. (Suspension and Termination), 8. (General).
GENERAL
1. Disputes. The parties will initially try to resolve by negotiation any dispute arising between them in relation to this Agreement. If the parties cannot resolve the dispute by negotiation, they will try to resolve it by mediation before resorting to arbitration. Either party may initiate mediation by giving written notice to the other (“Notice to Mediate”). Both parties must agree on the mediator, but if the parties cannot agree then the mediator will be selected by LEADR New Zealand Incorporated (Lawyers Engaged in Alternative Dispute Resolution) or its successor. Before the mediation starts, both parties and the mediator must sign a mediation agreement in a form agreed by all parties (such agreement not to be unreasonably withheld). If dispute is not resolved within 30 days of the Notice to Mediate, either party may require the dispute to be resolved by arbitration under the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule to that Act) to be held at Wellington. Both parties will proceed expeditiously to undertake the arbitration. The award in the arbitration will be final and binding. Neither party may resort to legal proceedings (except where that party seeks urgent interlocutory relief) unless it has taken all reasonable steps to comply with this clause 8.i.
2. Confidentiality. Each party will keep confidential all information obtained from the other party, in any form, that is confidential in nature, or expressed to be confidential, (“Confidential Information”), and will not disclose that information to a third party, nor use that information other than for the purposes of this Agreement, without the consent of the other party. Confidential Information includes this Agreement. Each party shall ensure that its employees, subcontractors and agents abide by these obligations of confidentiality. A party is not required to comply with this clause 8.ii. to the extent that the Confidential Information: is clearly required to be disclosed by law; was already in that party’s possession at the time the Confidential Information was obtained from the other party; is generally known and available to the public without that party having breached its obligations under this clause; was disclosed to it by a third party who has the right to make such disclosure; or has been independently developed without the benefit or use of the other party’s Confidential Information. Nothing in this clause 8.ii. shall prevent a party from exercising or enjoying the rights to intellectual property that it owns, or is granted, under clause 4. (Intellectual Property).
3. Subcontracting etc. Symbiont Ltd may subcontract or assign all or any part of its rights or obligations under this Agreement on written notice to You.
4. Variations. Any variation to this Agreement will only be effective if it is agreed in writing and signed by the Managing Director (or equivalent) of Symbiont Ltd.
5. Notices. Unless otherwise specified in this Agreement, any notice given under this Agreement must be in writing and delivered by fax or posted to the address on the Symbiont website.
6. Interpretation. In this Agreement, words in the singular number include the plural, and vice versa. Any examples in this Agreement, and references to “including” and similar words, do not imply any limitations. Headings are for ease of reference only and shall not affect the interpretation of this Agreement.
7. Definitions. Unless otherwise expressly stated in this Agreement, terms defined anywhere in this Agreement shall have the defined meaning throughout this Agreement.
8. Relationship of the parties. Nothing expressed or implied in this Agreement will be deemed to constitute either party as the partner or agent of, or in a joint venture with, the other party.
9. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes all previous agreements, arrangements, understandings or representations relating to that subject matter and any additional or different terms that You may provide to Symbiont Ltd. A waiver of any of the terms of this Agreement must be in writing and signed by the General Manager (or equivalent) of Symbiont Ltd.
10. Law. This Agreement is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.