Terms and Conditions

Last Updated 14th June 2019

Introduction

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.

1. Master Terms and Conditions

These terms and conditions shall apply to any work you agree to undertake with Philo Software.

1. DEFINITIONS

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:

Agreement means the agreement created upon the Parties executing the Agreement incorporating these Master Terms and Conditions.
Change Management refers to the processes and actions involved with coordinating the various parties operating within the context of the service.
Change Management Procedure means the procedure set out in Schedule One.
Change Request means a written document issued by either party to the other, in accordance with the Change Management Procedure.
Confidential Information means
- any information, technical data or know-how in whatever form, including, but not limited to, documented information, machine readable or interpreted information, information contained in physical components, maskworks and artwork,
- business related information including but not limited to pricing, manufacturing, or marketing,
- the terms and conditions of any proposed or actual agreement between the parties,
- either party’s business policies, or practices, and
- the information of others that is received by either party under an obligation of confidentiality.
Philo Software's Intellectual Property means:
- all intellectual property developed by Philo Software after the execution of this Agreement (including, without limitation, generic enhancements to Philo Software’s pre-existing Intellectual Property) that is not Your Intellectual Property; and
- the know-how, ideas and concepts developed by Philo Software during the performance of its obligations under this Agreement.
Fees means the charges indicated in a Statement of Work, plus GST, which are payable by you to Philo Software.
Good Industry Practice means, in relation to any undertaking and any circumstances, the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced operator engaged in the same type of undertaking under the same or similar circumstances, with reference to (without limitation) industry standards and practice.
Goods means the goods (excluding any software) described in a Statement of Work, provided that:
- (but solely for the purpose of the application of the PPSA) where the goods supplied are your inventory, then all references to goods in this agreement shall, in respect of those goods, be read as references to inventory for so long as they are held as inventory; and
- where the goods supplied are not your inventory, then all references to goods in this agreement shall, in respect of those goods, mean the goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) prepared by Philo Software and relating to those goods, on the basis that each such order form, packing slip or invoice (or its equivalent) is deemed to be assented to by you, incorporated in, and form part of, this agreement,
- and (unless the context requires otherwise) includes all proceeds of such goods and any product or mass which the goods subsequently become part of.
GST means goods and services tax payable under the Goods and Services Tax Act 1985.
Intellectual Property includes (without limitation) any right to, and any interest in, any patent, design, trade mark, trade name and all goodwill rights associated with such works, copyright, trade secrets and any other proprietary right or form of intellectual property (protectable by registration or not) in respect of any know-how, technology, concept, idea, data, component, tool, library, methodology, routine, program or other software (including in source and object codes), specification, formula, drawing, document, programme, design, system, process, logo, mark, style or other thing of similar nature, conceived, used, developed or produced by any person, whether in relation to the Services, any software or otherwise.
Master Terms and Conditions means these terms and conditions.
PPSA means the Personal Property Securities Act 1999.
Request for Goods means a request for Goods in an agreed form.
Security Interest means the security interest provided for under this agreement.
SLA means the service level agreement set out in Schedule Two, or as otherwise set out in the applicable Statement of Work.
Statement of Work means the document in an agreed form, but not limited:
- Statement of Work
- Work Request
- Web Proposal
- RFP
- Partner Agreement
- Referral Agreement
- SMS Statement of Work
- Offsite Work Request

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.

Third Party Intellectual Property means all Intellectual Property in the third party materials and/or Third Party Software.
Third Party Materials means all textual, graphical, audio, pictorial or similar materials supplied by any person other than Philo Software.
Third Party Software means all software supplied by a third party that is not an Affiliate of Philo Software.
Your Intellectual Property means:
- all Intellectual Property developed by you after execution of this agreement (including, without limitation, generic enhancements to your pre-existing Intellectual Property);
- the know-how, ideas and concepts developed by you under or in connection with this Agreement; and
- all Intellectual Property in the results of the Services that Philo Software provides to you under this Agreement.
Your Site means the location specified in a Statement of Work for delivery of the Goods, or as the designated workplace for Philo Software’s nominated personnel when providing the services (whichever is appropriate).

2. TERM AND PRIORITY

2.1. Commencement

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:

three years after the commencement date; or
notice of termination by either party is given under clause 13, or the Agreement is otherwise terminated at law.

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):

the applicable Statement of Work (if any);
this Agreement;
the applicable maintenance agreement (if any);
the applicable SLA (if any)

3. REQUESTING GOODS AND/OR SERVICES FROM PHILO SOFTWARE

3.1. Requesting Services

Philo Software will provide to you Goods and/or Services under each applicable Statement of Work on the terms and conditions within this Agreement.

3.2. Requesting Goods

Where you wish Philo Software to supply goods, you will:

provide Philo Software with a written Request for Goods; or
notify your Request for Goods to Philo Software

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.

4. PROVISION OF GOODS AND/OR SERVICES

4.1. Philo Software’s Obligations

Philo Software will provide the Goods and/or Services in accordance with the requirements of the applicable Statement of Work;
Philo Software will provide the Goods and/or Services in accordance with the service levels and other requirements set out in the SLA or, where there is no applicable SLA, in accordance with Good Industry Practice;
Philo Software will keep accurate records of the services provided and report to you as agreed in the Statement of Work, maintenance agreement or SLA;
Where any Services are to be provided by Philo Software on a time and materials basis (as specified in the Statement of Work), Philo Software will provide you with regular cost updates (as agreed in the Statement of Work, maintenance agreement or SLA), measured against any estimates given by Philo Software for the relevant Services.

4.2. Your Obligations

You, will meet all the responsibilities stated as yours in the Statement of Work, maintenance agreement or SLA, provided that Philo Software acknowledges and agrees that you have engaged Philo Software as the expert in its field and you may not have the requisite skills, expertise and experience;
You, will provide Philo Software with all reasonable assistance necessary for Philo Software to perform the Services or provide the Goods, as set out in the Statement of Work;
You, will ensure that all third party materials provided by you are legal and compliant; and
You, will where reasonably required by Philo Software, contract with the supplier of any third party software for the licensing and/or support of that third party software.

4.3. Change Requests

Either party may request a change to this Agreement by submitting to the other a Change Request.

5. TITLE AND RISK IN GOODS

5.1. Passing of Risk

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.

5.2. Passing of Title

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.

5.3. Restriction on Dealing

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.

5.4. Security

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).

6. CREDIT FOR RETURNED GOODS

6.1. Request for Return

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.

6.2. Returning Goods

Returned Goods (other than those contemplated by clause 6.1) must be in as new condition, in the original packaging and unsoiled and undamaged.

6.3. Cost of Returns

Unless you are returning Goods pursuant to clause 6.1, Philo Software will not refund your delivery costs.

7. PHILO SOFTWARE'S WARRANTIES

7.1. Goods Warranties

Philo Software warrants that:

it has the right to supply all of the Goods supplied to you;
all Goods supplied by it to you will:
- be of acceptable quality (as classified by industry standard);
- be fit for the purposes for which they are usually used
- comply with every sample or description given by Philo Software or any manufacturer;
all such Goods will, when delivered and installed, be free from any lien, charge, mortgage, reservation of title, encumbrance or any other adverse interest of any nature whatsoever; and
you will have the right to undisturbed possession of all such Goods from the time of delivery to you.

7.2. Services Warranties

Philo Software warrants that:

it will perform the Services in accordance with all applicable Statement of Work, maintenance agreement or SLA or, where no Statement of Work, maintenance agreement or SLA is specified, in accordance with Good Industry Practice;
personnel supplied to undertake the Services will have the requisite skills, expertise and competency for the purpose;
the results of the Services (including Your Intellectual Property) will conform to all relevant technical specifications and user requirement documents, and relevant performance specifications and other criteria recorded in the relevant Statement of Work, maintenance agreement or SLA; and
the provision of the Services by Philo Software to you, and the use by you of such Services, will not infringe in any way whatsoever the intellectual property rights of any person.

7.3. Warranty Period

Where any services are to be provided by Philo Software on a fixed price basis (as specified in the Statement of Work), then Philo Software will provide a warranty period of 30 days following the Statement of Work completion date (as defined as the date you sign off on the deliverables).
Where any Services are to be provided by Philo Software on a time and materials basis (as specified in the Statement of Work), these services are NOT subject any warranties and any failure will be attended to or remedied on a time and materials basis.

7.4. Remediation

For services provided on a fixed price basis if Philo Software breaches any of the warranties set out in clause 7.2 within the warranty period set out in clause 7.3, Philo Software will (at its own cost) remedy such failure as soon as reasonably possible after being requested by you in writing to do so. Requests are to be emailed to Philo Software. All requests will be acknowledged within 3 business days and actioned without delay.
Should any failure occur outside the warranty period, then the service of those matters may be handled as separate incidents and incur charges (where Philo Software notifies such charges to you in writing and you approve).
To the extent that Philo Software’s breach of warranty is due to matters outside of Philo Software’s control, then the service of those matters may be handled as separate incidents and incur charges (where Philo Software notifies such charges to you in writing and you approve).

8. INVOICING AND PAYMENT

8.1. Fees

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:

be in the form of a valid tax invoice for GST purposes;
specify the period of time covered by that invoice; and
provide sufficient detail to enable you to verify the accuracy of that invoice.

Unless otherwise agreed in a Statement of Work:

Design and development work undertaken by Philo Software designs is invoiced on the last business day of the month with payment due on the 20th of the following month.
Philo Software hosting accounts are invoiced on the first business day of each month and are due on the 20th of the same month.
Philo Software Domains accounts are invoiced 90 days prior to the renewal date of the domain.

8.2. Invoices

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.

8.3. Quotes

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.

8.4. Estimates

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.

8.5. GST

Unless otherwise stated, all fees are exclusive of GST, which is payable at the time that you pay Philo Software’s invoices.

8.6. Invoice Disputes

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.

8.7. Suspension of Services

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.

8.8. Interest on Overdue Amounts

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.

9. CONFIDENTIAL INFORMATION

9.1. Obligation of Confidentiality

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:

the existence, subject matter or any of the terms of this Agreement; or
any Confidential Information directly or indirectly obtained from the other party under or in connection with this Agreement, including (without limitation) any Confidential Information relating to the financial position of a party or to its business, sales, marketing or technical operations; relating to a party’s clients or suppliers; relating to a party’s internal management, structure, personnel or strategies; or relating to a party’s Intellectual Property,

except to the extent:

it is required by law;
it is necessary to obtain the benefit of, or to carry out any obligation under, this Agreement;
that the Confidential Information is or becomes available in the public domain without a breach by a party of its confidentiality obligations under this clause or at law;
that the Confidential Information is independently developed by the recipient;
that the Confidential Information is known to the recipient at the time of disclosure through no fault of the recipient; or
that the Confidential Information is received from a third party without restrictions similar to those in this clause.

9.2. Confidentiality Term

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).

9.3. Compelled Disclosures

If any party is required to disclose any matter or information covered by clause 9.1, that party will:

immediately notify the other party in writing so that it may (if it considers appropriate) seek a protective order or other remedy;
only disclose information to the extent legally required; and
use its reasonable endeavours to obtain undertakings that confidential treatment will be accorded to the information by the person to whom it is disclosed.

9.4. Additional Confidentiality Requirement

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).

9.5. Records Maintenance

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.

10. INTELLECTUAL PROPERTY IN RESULTS OF SERVICE

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.

10.1. Pre-existing Intellectual property

Each party will continue to own all Intellectual Property developed or owned by it prior to the date of execution of this Agreement.

10.2. Your Intellectual Property

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.

10.3. Philo Software’s Intellectual Property

You acknowledge that Philo Software owns all rights, title and interest in Philo Software’s Intellectual Property.

10.4. Third Parties’ Intellectual Property

Each party acknowledges that it will not obtain any right, title or interest in the Third Party Intellectual Property.

10.5. Your Use of Philo Software’s 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:

alter, remove, obscure or tamper with any trademarks, any patent or copyright notice, or any confidentiality, proprietary or trade secret legend or notice, or any numbers, or other means of identification used on or in relation to Philo Software’s Intellectual Property;
provide unlicensed third parties with access to Philo Software’s Intellectual Property except as expressly authorised by this Agreement or prior approved by Philo Software (approval not to be unreasonably withheld or delayed);
knowingly authorise or permit any third party to do any act which would, or might, invalidate Philo Software’s Intellectual Property.

11. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS

11.1. Notification of Infringement

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.

11.2. Philo Software’s Indemnity

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.

11.3. Infringement 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:

obtain for you the right to use the Goods or the results of the Services (including Your Intellectual Property) which is the subject of the claim; or
modify the results of the Services (including Your Intellectual Property) to make it non-infringing or supply non-infringing goods, as the case may be; or
(with your prior approval) grant to you the right to use a different service, or provide substitute goods, of equal value and worth 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:

use of any results of the Services (including Your Intellectual Property) in combination by any means and in any form with software or equipment not specifically approved by Philo Software or in a manner or for a purpose not expressly contemplated by the relevant Statement of Work;
modification or alteration of any part of the results of the Services (including Your Intellectual Property) by any person other than Philo Software without Philo Software’s prior written consent (not to be unreasonably withheld); or use of any Third Party Materials.

11.4. Third Party Materials and Software

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).

12. LIABILITY AND INDEMNITY

12.1. Indemnity

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.

12.2. Direct Losses

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.

12.3. Intellectual Property

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.

13. TERMINATION

13.1. Immediate Termination

Either party may terminate this Agreement (and all current Statement of Works) immediately on written notice to the other party if the other party:

enters into a composition with its creditors, is declared bankrupt, goes into liquidation, or a receiver, or a receiver and manager, or statutory manager is appointed in respect of it, or any steps are taken towards its winding up or it is unable to pay its debts when due; or
assigns its rights or obligations under the Agreement, or a Statement of Work, otherwise than in accordance with clause 18.7 (Assignment).

13.2. Termination by Either Party

If one party materially defaults in the performance of any of its obligations under this Agreement and:

the material default is capable of being remedied, and is not remedied within 1 months’ notice by the non-defaulting party specifying the default; or
the material default is not capable of being remedied,

the non-defaulting party may immediately terminate this Agreement.

13.3. Consequences of Termination

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:

take back all or part of the Goods and/or results of the Services in your possession but not yet paid for by you, or
charge, and you will promptly pay Philo Software the undisputed portion of such charges, for the Goods and/or results of the Services in your possession that have not yet been paid for by you.

13.4. Your Rights After Termination

On termination of this Agreement (in whole or in respect of the applicable Statement of Work):

Philo Software shall, within 14 days of the termination date, return to you all documentation supplied by you, all of your Confidential Information in its possession or control, and all results arising from Services performed by Philo Software and paid for by you prior to termination; and
You may retain your licence to use Philo Software’s Intellectual Property, except where you are in material breach of clause 10 (Intellectual Property in Results of Services) or clause 9 (Confidential Information), in which case you must immediately destroy or return all of Philo Software’s Intellectual Property.

14. HEALTH AND SAFETY

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.

15. NON-SOLICITATION OF STAFF

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. DISPUTE RESOLUTION

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.

17. PUBLICITY

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.

18. ESTIMATES, SPECIFICATIONS AND INSTRUCTIONS

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.

19. PROPERTY AND/OR STORAGE

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.

20. TECHNOLOGY

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.

21. DISCONNECTION AND REMOVAL OF MATERIAL FROM INTERNET SERVER

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.

22. CONSULTATION

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.

23. GENERAL

23.1. Relationship

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.

23.2. Force Majeure

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.

23.3. No Waiver

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.

23.4. Entire Agreement

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).

23.5. Variation

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.

23.6. Severability

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.

23.7. Assignment

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.

23.8. Consumer Guarantees Act

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.

23.9. Rights, Powers and Remedies

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.

23.10. Notices

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:

in the case of delivery by hand, at the time of actual delivery to the recipient’s address;
in the case of registered mail, three business days after posting;
in the case of e-mailed pdf documents, the earlier of the sender’s receipt of confirmation of successful delivery, or one day after the e-mail first leaves the sender’s network for delivery to the recipient’s address (provided the sender does not receive any indication of failure or delay in delivery within one day after that dispatch);
in the case of facsimile, upon receipt of facsimile confirmation (whichever is applicable).

23.11. Law

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

2. Schedule One - Change Management Procedure

1. Changes to be by Change Request

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.

2. Acknowledging Receipt of Change Requests

The party receiving a Change Request must acknowledge receipt of it to the other party within five business days of receipt.

3. Your Response to Philo Software’s Change Request

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

4. Philo Software’s Response to Your 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

(d) any reason why Philo Software is unable to satisfy the new or varied requirements.

5. Fairness, Objectivity and Accuracy

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.

6. Philo Software to Make Supporting Information Available

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.

7. Your Acceptance

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.

8. Your Decision

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.

9. Priority of Agreed Change Requests

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.