Last Updated 14th June 2019
The parties have agreed to establish a non-exclusive relationship under which Philo Software will provide you goods and/or professional services.
This Agreement forms the standard terms and conditions under which Philo Software and you agree to operate.
For each new project, the parties will enter into a new Statement of Work that incorporates (unless otherwise agreed) these Master Terms and Conditions.
These terms and conditions shall apply to any work you agree to undertake with Philo Software.
1.1. “Philo”, “Philo Software”, "we", "us" and “our” means Philo Software Limited.
1.2. “you" and “your” means either the natural person(s) and/or the corporate entity (or entities) that have entered into a binding Agreement with Philo Software for Goods and/or Services under the Agreement.
1.3. Philo Software and the Client may each be referred to herein as a "Party" and collectively as the "Parties".
1.4. Unless the content otherwise requires:
Which records the Goods and/or Services which Philo Software agrees to provide and (unless otherwise stated in the Statement of Work) incorporates the terms of this Agreement in relation to the supply of those Goods and/or Services.
This Agreement commences on the date the Statement of Work is agreed-upon and signed by the parties (the commencement date) and shall continue until either:
Any conflict between this Agreement and any other document governing the same subject matter will be resolved by the following order of priority applying (the earlier having priority over the later):
Philo Software will provide to you Goods and/or Services under each applicable Statement of Work on the terms and conditions within this Agreement.
Where you wish Philo Software to supply goods, you will:
Notification to Philo Software in either form will, once accepted by Philo Software, constitute a Statement of Work for the Goods, and Philo Software will provide those Goods on the terms and conditions of this Agreement.
Either party may request a change to this Agreement by submitting to the other a Change Request.
Risk of any loss of, or damage to, the Goods shall pass to you on delivery to Your Site. If you reject any Goods in accordance with this Agreement, title and risk therein will remain with or revert to Philo Software from the time that rejection is notified. On a case by case basis, you may agree to obtain insurance in both yours and Philo Software’s name as opposed to, providing evidence/certificates of insurance to Philo Software.
Subject to clause 5.1, Philo Software will retain all legal and beneficial ownership of any and all Goods until it receives payment in full. Upon such full payment title will pass to you and Philo Software will be deemed to have released any Security Interest it may have under clause 5.4.
Until the Goods and/or Services have been paid for, you must not sell, dispose of, or otherwise part with possession of, the Goods and/or Services, except in the ordinary course of your business. This authority is revoked immediately if any of the events listed in clause 13 occurs in respect of you.
You agree that this agreement constitutes a security agreement for the purposes of section 36 of the PPSA and that Philo Software may elect to take a Security Interest in all present and after acquired goods and the proceeds thereof supplied by Philo Software to (or for the account of) you to secure the payment by you of all amounts owing to Philo Software. The Security Interest shall continue until the earlier of Philo Software giving you a final release and the Security Interest being deemed to have been released under clause 5.2.
You shall sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Philo Software may reasonably require to perfect and maintain the ongoing perfection of its Security Interest (including the registration of a financing statement or financing change statement on the Personal Property Securities Register).
Philo Software will accept requests for credits or returns of faulty, incorrectly ordered (by Philo Software) or non-conforming Goods. Philo Software will not accept requests for credits or returns of shrink-wrapped software which you have opened.
Returned Goods (other than those contemplated by clause 6.1) must be in as new condition, in the original packaging and unsoiled and undamaged.
Unless you are returning Goods pursuant to clause 6.1, Philo Software will not refund your delivery costs.
Philo Software warrants that:
Philo Software warrants that:
Philo Software will invoice you monthly in arrears for the Fees, together with the cost of materials supplied or used, delivery charges, any travel (as agreed in the Statement of Work) and any other pre-approved expenses incurred. Each such invoice will:
Unless otherwise agreed in a Statement of Work:
You will pay Philo Software's invoices by the 20th of the month following the date of the invoice without setoff or deduction of any kind, unless previous written authority has been obtained from Philo Software.
Any quote Philo Software gives to you in relation to Goods and/or Services is valid for 14 days from the date the quote is given. Philo Software may however vary or withdraw a quote at any time before you accept it by notice in writing.
All amounts expressed in this Agreement, applicable Statement of Work, maintenance agreement or SLA are estimates unless expressly stated otherwise. You acknowledge that an estimate does not foresee every circumstance: Philo Software will advise you in writing in a timely manner if it believes an estimate will be exceeded.
Unless otherwise stated, all fees are exclusive of GST, which is payable at the time that you pay Philo Software’s invoices.
You must notify Philo Software within 10 days of receipt of any invoice you genuinely dispute, and otherwise pay the undisputed portion of the invoiced amount to Philo Software. Any disputed invoice will be subject to dispute resolution under clause 16.
Subject to clause 8.8, if you do not pay Philo Software's invoice by the due date, Philo Software may, upon 7 days’ notice in writing to you, suspend its obligation to provide the applicable Services until you pay the corresponding invoice in full. Philo Software’s other rights and remedies shall otherwise remain unaffected.
Philo Software shall be entitled to charge interest at 2% per month or part month on any amount overdue for payment under this agreement. All fees and charges incurred in recovering overdue payments are payable by you including, but not limited to, costs on a solicitor client basis and any debt recovery fees.
Each party will at all times (including after the termination or expiry of this Agreement) keep confidential, treat as privileged, and not directly or indirectly make any disclosure or use, or allow any advertising, public statement or announcement, to be made of:
except to the extent:
The receiving party will keep all Confidential Information disclosed confidential until the Confidential Information is either no longer confidential, or for a period of 10 years following the expiration or termination of this Agreement (whichever occurs first). Each party will retain ownership of its Confidential Information. Except as expressly provided in this Agreement, no right or licence is granted hereby to either party or its customers, employees or agents, expressly or by implication, with respect to the Confidential Information or any patent, patent application or other proprietary right of the other party. Philo Software agrees to use the Confidential Information of you only to provide the Goods and/or Services for you. You agree that you will not use or disclose Philo Software’s Confidential Information for any purpose besides your business purposes and any sale or disposal of all or any part of your business (provided the recipient enters into confidentiality obligations in respect of that Confidential Information equivalent to the provisions of this clause 9).
If any party is required to disclose any matter or information covered by clause 9.1, that party will:
In addition to the confidentiality provisions of this clause 9, Philo Software agrees to be bound by and enter into (and procure that its employees, agents and other representatives enter into) such security or confidentiality documentation as may be reasonably required by you at any time agreeable to Philo Software (agreement not to be unreasonably withheld or delayed).
Philo Software will maintain all records, reports, documents and other information relating to this Agreement, including any information relating to health and safety, for at least seven years after termination or expiry of this Agreement.
Unless otherwise agreed in a Statement of Work, ownership of Intellectual Property in the results of a Service will be in accordance with the principles set out below.
Each party will continue to own all Intellectual Property developed or owned by it prior to the date of execution of this Agreement.
Philo Software acknowledges that you own all rights, title and interest in “Your Intellectual Property”. Ownership of “Your Intellectual Property” does not depend on payment, as “Your Intellectual Property” includes Intellectual Property developed by you under this Agreement.
You acknowledge that Philo Software owns all rights, title and interest in Philo Software’s Intellectual Property.
Each party acknowledges that it will not obtain any right, title or interest in the Third Party Intellectual Property.
Philo Software grants to you a non-exclusive, sub-licensable, non-transferable licence to use Philo Software’s Intellectual Property for your own internal business purposes, provided that you do not:
You must notify Philo Software of any actual, threatened or suspected infringement of any of Philo Software’s Intellectual Property and of any claim by any third party that any use of the results of the Goods and/or Services (including any use of your Intellectual Property) infringes the rights of any other person, as soon as that infringement or claim comes to your notice.
Philo Software indemnifies you against any claim, suit, action or proceeding (‘Action’) brought against you to the extent that the Action is based on a claim that your use of the Goods and/or Services provided under this Agreement constitutes a breach of any patent, copyright, trade secret or other proprietary right, provided that Philo Software may at its option and cost defend or settle the Action and you must fully co-operate at all times in defending or settling the Action. Where you fail to comply with obligations under this clause, Philo Software will not be liable to indemnify you against the Action.
If an Action is threatened or commenced, Philo Software will at its election and with your consent (not to be unreasonably withheld or delayed) at no additional cost to you:
Philo Software is not liable for any loss (including, without limitation, loss of profits, data or business opportunity), cost, expense, demand or liability suffered or incurred by you that arises from a claim by a third party alleging infringement of that third party’s intellectual property rights to the extent that the loss, cost, expense, demand or liability results directly from:
Philo Software provides no warranties or indemnities in relation to third party materials or third party software, but will pass on the benefit of any third party warranties or guarantees to the full extent that it is lawfully able (and will take all reasonable steps to assist you to obtain the full benefit of those third party warranties or guarantees).
Each party (the “Indemnitor”) will indemnify, defend, and hold the other (the “Indemnitee”) harmless against third party claims (including, without limitation, the parties’ employees) for personal injury, death or loss of or damage to property to the extent caused or contributed to by the Indemnitor’s negligence in the performance of this Agreement. The Indemnitor’s obligations under this clause are conditional on receiving prompt notice of a claim from the Indemnitee. The Indemnitor will be entitled exclusively to control the defence, provided that the Indemnitor may not enter into any settlement, assume any obligation or make any concession without the prior written approval of Indemnitee, which may not be unreasonably withheld or delayed. At the Indemnitor’s expense, the Indemnitee will provide reasonable assistance in defence of the claim including, but not limited to, promptly furnishing the Indemnitor with all relevant information within its possession or control. Because the Indemnitor will provide the defence, the Indemnitor will not be liable for any legal fees or costs of Indemnitee. The Indemnitee may participate in the defence, but in no event will the Indemnitor be liable for the Indemnitee’s legal fees or costs. The Indemnitee may not enter into any settlement, assume any obligation or make any concession without the prior written approval of Indemnitor, which may not be unreasonably withheld. Liability under this clause 12 is subject to clauses 12.2 and 12.3.
Unless otherwise agreed in writing, Philo Software’s liability to you under a Statement of Work is limited to a maximum amount equal to two times the total fees paid by you to Philo Software under that Statement of Work, provided that such liability limit will not apply in respect of Philo Software’s breach of warranty or obligation of confidentiality under this Agreement.
Where you modify or alter any part of the results of the Services (including Your Intellectual Property) prior to completion under the applicable Statement of Work without Philo Software’s prior written consent (not to be unreasonably withheld), Philo Software will have no liability to you under this Agreement in respect of those modified or altered parts.
Either party may terminate this Agreement (and all current Statement of Works) immediately on written notice to the other party if the other party:
If one party materially defaults in the performance of any of its obligations under this Agreement and:
the non-defaulting party may immediately terminate this Agreement.
On termination of this Agreement (in whole or in respect of the applicable Statement of Work), all amounts owing to Philo Software for Services already performed or Goods already delivered under the applicable Statement of Work will immediately become due and payable.
If Philo Software terminates this Agreement pursuant to clause 13.1 or 13.2, Philo Software may:
On termination of this Agreement (in whole or in respect of the applicable Statement of Work):
You will be responsible for preparing and maintaining safe premises and will comply with the Health and Safety in Employment Act 1992 and all regulations and codes of practice made under the Act.
Neither party will employ, solicit or otherwise engage, the services of the other party’s personnel during the term of this Agreement and for 12 months thereafter.
16.1. Neither party will commence any court or arbitration proceedings relating to a question, difference or dispute relating to this agreement (dispute) unless the party has first complied with this clause 16.
16.2. Where any dispute arises, the representatives of the parties will meet and negotiate in good faith in an attempt to resolve the dispute amicably by good faith discussion.
16.3. Where the representatives of the parties do not resolve the dispute within 3 business days (or as agreed) of initiating negotiations, each party will meet to try to settle the dispute. If they are unable to settle the dispute within 3 business days (or as agreed) of first meeting, the parties agree for directors of their board to meet to try to settle the dispute. If they are unable to settle the dispute within 3 business days (or as agreed) of first meeting, the parties agree to mediate any dispute in terms of the LEADR New Zealand Incorporated Standard Mediation Agreement. The mediation will be conducted by a mediator and agreed by the parties. The costs of the mediation will be borne by the party raising the dispute unless otherwise agreed or determined by the mediator.
16.4. If the parties fail to settle the dispute by mediation within 15 business days of the dispute being referred to mediation then either party may initiate arbitration (but not litigation) in accordance with the Arbitration Act 1996 to resolve the dispute.
16.5. Nothing in this clause will preclude either party from taking immediate steps to seek urgent injunctive or equitable relief before an appropriate court.
Neither party will make public any matter relating to or arising from this Agreement, a Statement of Work, maintenance agreement or SLA without the prior written consent of the other party.
Each estimate or specification shall lapse, unless accepted or further consultation is pursued, within 30 days from the day given unless otherwise stated in that estimate or specification.
Goods and/or Services will be provided using the ‘latest’ version of a specification or estimate that has been signed off by you.
Unless otherwise agreed in writing the client shall have no right or title to material stored by Philo Software on digital storage media unless an agreement has been formalised in writing to the client by Philo Software. If Philo Software agrees to duplicate or transfer stored digital material on digital storage media to the client, Philo Software has the right to charge for that service. Any form of digital storage supplied by the client to Philo Software shall remain the property of the client. Unless otherwise instructed in writing, Philo Software shall assume that these are copies of the original.
If any change or correction is necessary in order to supply properly finished work, the additional work shall be at the client's expense. Philo Software shall not be held to accept responsibility for sub-standard work to the extent caused by defects or unsuitability of materials or equipment that has been supplied by the client.
Material and equipment in this document refers to physical or digital information in any format, and any other items or assets.
Subject to clause 22, Philo Software will support technologies for browsers and computer settings that were current at the time of development. We accept no responsibility if technology changes and a product or service is no longer accessible.
Philo Software reserves the right at all times to remove from its internet server without notice an individual client’s material which is of an illegal and/or libellous nature.
Philo Software will ensure full consultation with the client is maintained throughout the development process. Philo Software will promptly advise the client in the event of any new advantages or technology that can be used in favour of the client's needs.
Philo Software's relationship to you is that of an independent contractor. Nothing in this agreement constitutes a partnership, joint venture or relationship of employer and employee between the parties. Neither party has the power or authority to incur any obligation of any nature of behalf of the other party.
Notwithstanding any other provision of this agreement, non-performance by either party of any of its obligations (other than to pay money) under this agreement will be excused, without liability, if the non-performance is caused by an event or circumstance beyond the reasonable control of that party (force majeure). The party claiming the benefit of this clause must promptly give written notice to the other party. If a force majeure event continues for more than 30 days, either party may terminate this Agreement.
Any failure or delay by either party in exercising any right or remedy will not constitute a waiver of such right or remedy.
The single or partial exercise of any right or remedy under this Agreement does not preclude the exercise of any other right or remedy or its further exercise.
The rights and remedies provided in this Agreement are cumulative. They do not exclude any rights or remedies provided by law.
Any waiver or consent given by a party must be in writing and will be effective only in the specific instance and for the specific purpose for which it is given.
This Agreement, and each Statement of Work, maintenance agreement and SLA will constitute the entire agreement between the parties for the provision of the Goods and/or Services and supersedes all prior written and oral proposals, agreements and communications between the parties. This Agreement will apply notwithstanding anything, express or implied, to the contrary contained in any purchase order or request (or its equivalent, whatever called).
Any variation of this Agreement, a Statement of Work, maintenance agreement or SLA shall be in accordance with the Change Management Procedure, or in writing and signed by a duly authorised representative of each party.
If any provision of this Agreement, a Statement of Work, maintenance agreement or SLA, is declared invalid, or for any reason is no longer relevant to the supply of Goods and/or Services to you the remaining provisions of this Agreement, or the Statement of Work, will continue to apply.
Neither party may assign any or all of its rights under this Agreement, a Statement of Work, maintenance agreement or SLA without the other party’s prior written consent (not to be unreasonably withheld). A change of control in a party is deemed an assignment for the purposes of this clause.
Philo Software may subcontract the performance of any of its obligations under this Agreement, Statement of Work, maintenance agreement or SLA, provided that Philo Software will be responsible to you for the third parties performance.
You confirm that any Goods and/or Services you acquire from Philo Software are acquired for the purposes of a business and, accordingly, the Consumer Guarantees Act 1993 does not apply.
The rights, powers and remedies provided for in this Agreement are in addition to, and do not limit or exclude (or otherwise adversely affect), any right, power or remedy provided to either party by law.
Any notice required or permitted under the terms of this Agreement or required by statute, law or regulation will (unless otherwise provided) be in writing and delivered by hand, registered mail, e-mail (provided the notice is attached to the e-mail as a pdf document) or by facsimile to the addresses set out in this agreement and will be deemed to have been received:
This Agreement, each Statement of Work, maintenance agreement and SLA is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand
Either party may request a change to this Agreement by submitting to the other a change request which must be:
(a) marked with a unique reference number; and
(b) signed by Philo Software and you.
The party receiving a Change Request must acknowledge receipt of it to the other party within five business days of receipt.
You must at your own cost review any Change Request received from Philo Software and you must, within five business Days of receipt, respond in writing to Philo Software advising whether you:
(a) accept the Change Request;
(b) wish to negotiate, or require further information in respect of, the Change Request; or
(c) reject the Change Request.
Philo Software must at its own cost review any Change Request received from you and must, within five business days of receipt, respond in writing to you advising:
(a) any changes to the Fees to be paid by you for satisfaction by Philo Software of your Change Request;
(b) any impact which the satisfaction of the new Change Request would have on the ability of Philo Software to fulfil its obligations under this Agreement; and
(c) any changes to the terms of this Agreement which are necessary to allow the Change Request to be satisfied; or
(d) any reason why Philo Software is unable to satisfy the new or varied requirements.
A party’s response to any Change Request by the other must be fair, objective and accurate and must not impose or imply any unreasonable or arbitrary conditions. Philo Software must not unreasonably decline to satisfy a Change Request.
If requested by you, Philo Software will promptly make available to you all costing, technical and other information necessary for you to evaluate any Change Request of Philo Software or Philo Software’s response to any Change Request.
If you accept a Change Request of Philo Software or Philo Software’s response to a Change Request, you will provide written acceptance to Philo Software and promptly deliver to Philo Software a signed variation recording all matters necessary to implement the Change Request.
Despite any other provision of this Agreement, you are not obliged to accept Philo Software’s Change Request or Philo Software’s response to your Change Request, and you will have no liability to Philo Software if this occurs. If you do not accept Philo Software’s Change Request or Philo Software’s response to your Change Request, you will advise Philo Software of this in writing as soon as is practicable and the Change Request will not be implemented.
Any changes agreed by the parties under this section will be deemed to be incorporated into this Agreement and will take priority in the event of any inconsistency with this Agreement.