Terms of Engagement

TERMS OF ENGAGEMENT FOR SOFTWARE DEVELOPMENT WITH URBAN LIGHTBULB LIMITED

General
1. These Standard Terms of Engagement (Terms) apply to any current engagement and also to any future engagement. We are entitled to change these Terms from time to time, in which case we will send you amended Terms. Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.
Services
1. The provision of the services we provide to you are governed by these terms. Any further instructions that you provide to us must in writing (or that we record in writing) subject to our approval of such terms and will be subject to additional costs subject to these terms. On acceptance of any quote, or commencement of work these terms of engagement shall apply.
2. The parties agree that it is often necessary to develop a Specification Plan. You may require a Project Plan which will inform any milestones and a completion date. The completion date will be read subject to these terms.
3. The Specification Plan is to inform how software will operate and what your requirements are.
Interpretation
1. Designated platform means any website or integration with software as agreed to in the Scope of Works. If none is specified then the Software Development does not include installation to your designated platform.
2. Designated Platform means one medium you choose to install the software contemplated by these terms on.
3. Project Plan means a signed document entered into at the start of the work (if you require one) specifying milestones and may inform payment of Fees where the work is undertaken on a fixed fee basis).
4. Scope of Works means a written document signed by both parties to outline the work that is included in the Software Development Project and work that is not included to bring more clarity to the Specification Plan. The Scope of Works will be attached to the Specification Plan and be signed by both parties. These terms may be modified by both parties agreeing in writing. Careful consideration must be given to this as any changes to the Specification Plan and Scope of Works will incur additional costs unless otherwise agreed to in writing.
5. Software Development Project means any work completed for you and which is subject to these terms.
6. Software means the computer code to be written, developed and supported by the us pursuant to these terms consisting of a set of instructions or statements in both machine readable and human readable media and the associated documentation but excluding all proprietary software used by us or the you under licence.
7. Specification Plan means a written document which is agreed to at the outset of any project which is signed by both parties. We may reference a proposal in the Specification Plan and this can form the basis of the Specification Plan once it is signed by both parties. The parties agree that work will not commence on quoted work unless there is a Specification Plan.
Developer Warranties
1. The Developer agrees to:
  1. Provide our services on the basis of upholding a reasonable level of skill and care and in accordance with the Specification Plan and Scope of Works.
  2. Keep a master copy of the source code for the Software at all times maintained and stored in duplicate with one complete copy being available at all times to you. The master copy must be maintained with all current modifications, updates, alterations, amendments and enhancements on a not less than weekly basis during the term of our engagement with you and thereafter subject to maintenance agreement (if any).
  3. develop the Software for you in accordance with the Specification Plan and Scope of Works, either ourselves or using employees, agents, representatives, contractors or subcontractors;
  4. State on the Scope of Works whether or not the Developer will install in fully operational form the Software on the Designated Platform or otherwise;
  5. State on the Scope of Works whether the Developer will maintain the Software unless prior arrangements have been made;
  6. transfer absolute title (with no adverse third-party claims or rights) to all intellectual and personal property of whatever kind in the Software and to the Associated Documentation, subject to payment in full by the Client of all charges;
  7. require that any employee, agent, representative or independent contractor or subcontractor who performs work in relation to the Software or the Associated Documentation assigns absolutely all the intellectual and personal property referred to in subclause to the Developer and then to the Client, where applicable;
2. The Developer does not warrant that:
  1. the Software is bug free;
  2. If the Specification or Scope of Works changes during the course of the Software Development and this causes additional bugs to the Software, then the Developer is not responsible for costs to rectify same as part of a fixed price;
  3. the Software will be Bug free or encounter any adverse effects after six months of delivery of software;
  4. the Software will function on updated or a modified system to your Designated Platform;
  5. The Developer will update the Software after it has been delivered;
  6. the use of the Software will be uninterrupted; or
  7. the Software will meet the Client’s requirements other than as set out in the Specifications Plan and Scope of Works.
  8. If there are any defects with the Software, The Developer will not be liable to remedy any such defect in the Software if:
    1. the bug does not result in the performance of the Software deviating from the Specification Plan and Scope of Works;
    2. the defect is the result of alterations or modifications to the Software not authorised in writing by the Developer;
    3. the bug is the result of use of the Software in combination with equipment, software or services not authorised in writing by the the Developer;
    4. the bug is the result of use of the Software other than in the operating environment recommended by us or other than in accordance with the Developer’s reasonable directions; or
    5. the bug is the result of failure of the you to meet your obligations under these terms or any other agreement with the us.
    6. Defects to the Software include hacking and cyber-attack any loss from same which the Developer is not responsible for.
The Client agrees to the following:
1. To provide clear instructions and agree the onus of establishing particular requirements for the Software to be commissioned is the Client’s responsibility. The Client will ensure that their requirements are adequately reflected in the Specification Plan and Scope of Works and acknowledge that if there are no specifications then the Software will be coded and written at the Developers discretion.
2. To grant the Developer all required information necessary to complete the software promptly and allow us access to all information necessary to complete the project.
3. To pay all fees. All unpaid fees will incur penalty interest of 6% above the overdraft rate that our firm’s main trading bank charges per annum if not settled by the 20th of the following month if not otherwise agreed to in writing. Any debt recovery costs will be payable by the Client.
4. Invoices are payable by the 20th of the following month of the invoice, unless alternative arrangements have been made with us.
5. If you have difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements.
6. In addition to the above, if your account is overdue we may:
  1. stop work on any matters in respect of which we are providing services to you;
  2. require an additional payment of fees in advance or other security before recommencing work;
  3. require out of pocket expenses to be reimbursed.
General Software Development Terms
1. The Scope of Works will specify if the Software will be in fully operation form. In some instances, there will be additional costs payable for integration to the Client’s website or Designated Platform, software of equipment. We allow for installation onto a standard Designated Platform. Bespoke installation will incur additional costs.
2. We will agree on the Specification Plan and Scope of Works what is included and excluded for the above purposes including maintenance and hosting (if applicable). Where subjective or bespoke work is required, these will be clearly detailed in the Specification Plan and Scope of Works.
3. The parties accept the default position under s 21(3) of the Copyright Act 1993. The first ownership of Copyright is with the person or entity who has commissioned the works unless otherwise agreed to in writing.
4. The parties may vary (c) above only by agreement in writing. If ownership is not per clause (c) above, due to our written agreement then licensing may be possible. Please discuss this with us.
Fees and establishing expectations
1. It is accepted that additional costs may be payable during the term of the Client’s engagement with the Developer where work is undertaken outside the Specification Plan or Scope of Works at the Client’s direction.
2. We may provide our services on the following basis:
  1. Fixed fee; or
  2. Hourly charge out rate.
    1. Our hourly charge out rate is $125.00 Plus GST per hour and may be amended by us from time to time in writing.
    2. Where there is a fixed fee arrangement the parties agree that it is in their best interests to set expectations at the outset. This includes what matters are included as part of software development and what matters are excluded from it.
    3. It is accepted by the parties that Software Development involves a range of aspects to be completed to ensure that the Client can successfully operate the software in the manner that Client chooses. To this extent, Software Development is one aspect of that idea. There are other matters to ensure that software is installed on the Clients designated Platform and maintained or updated from time to time. The Developer and Client will determine in the Scope of Works how this applies to the Client’s project including the intended purpose of the software.
    4. The following matters will incur additional costs:
      - Additional subjective requirements added to a Scope of Works or Specification Plan which are not included therein from the outset;
      - Third party interference where software has been modified or not used in the specified manner;
      - Fixing bugs or errors which result from additional subjective requirements to a specification plan and any resulting failure(s) in the Software if changes are made;
      - Shorter timeframes being required;
      - Change of Scope of Works or Specification Plan.
      - Connection of Software to any website or other designated Platforms of any kind unless included in the Scope of Works or by prior written agreement.
      - Maintenance and Hosting of the Software.
    5. We will agree at the outset whether connection to Designated Platform is included or excluded and if Maintenance Services and Hosting Services are included or excluded.
    6. We agree to disclose any third-party costs or licensing costs which may be payable at the outset of any project.
    7. Where third party costs are not clear from the outset, the Client agrees to pay for these costs up to a value of 5% of total project cost.
3. In order to help clarify these uncertainties and the fact that software can operate in numerous ways in terms of functionality, we retain a discretion about how to code the software and how functionality is established, unless expressly stated by the Client. The Developer will ensure that objectively the software product complies with the Specification Plan. Objectivity is established for the purpose of these terms if software does what it says it does per the Specification Plan, Scope of Works, or otherwise agreed to in writing. Any subjective elements or bespoke requests that are asked for by the Client then these will incur additional costs.
4. In the event of a dispute, to help establish this whether the Scope of Works has changed from the Specification Plan, we will look to the original Specification Plan to determine what the original Scope of Works included taking into account the objectivity referred to above.
5. If for example, the Client has requested that the software must have a search function, the Client will need to detail any particular requirements for that search function (if any). This may include categories or filters which will be included in that function and if the Client wants them to be categorized or viewed in a particular manner and how the software functions specifically.
6. The Client agrees to establish a Specification Plan together with the Developer which will form the basis of any quote. The specification plan must identify functionality, responsibilities, project milestones, resources and costs to be reflected in the fees.
7. Furthermore, if the Client requires any changes to the scope and nature of the software to be provided, or the elements of the software which we reasonably believe requires additional time, material or resources to be provided then additional costs may be payable at the Developers discretion.
Delivery and installation
1. The Developer agrees to deliver the Software and Associated Documentation (where requested) to the Client. Where installation of the Software is contained in a fixed fee arrangement, the Client must give the Developer such reasonable assistance, including the provision of personnel and equipment, as the Developer considers necessary to ensure satisfactory installation.
2. Where installation of Software is complex in nature and requires installation onto more than one Designated Platform or the Designated Platform is complex and not standard this must be disclosed by the Client.
3. Where hosting and maintenance are not part of the Specification Plan the parties will enter into separate documentation for same.
Liability and Insurance
1. No party is liable for force majeure.
2. Conditions of force majeure:
  1. Neither party is in breach of this Agreement if its breach is caused by an act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining any raw materials, energy or other supplies, labour disputes, including cyber-attack and hacking of whatever nature and any other reason beyond the control of either party.
3. Modification of force majeure
  1. If either party is unable to perform its duties and obligations under this Agreement as a direct result of any such reasons that party must give immediate written notice to the other of such inability stating the reason.
4. Suspension of agreement
  1. The operation of this Agreement will be suspended during the period (and only during the period) in which the reason continues. Immediately upon the reason ceasing to exist the party relying upon it must give written advice to the other of this fact.
  2. If the reason continues for a period of more than 60 business days and substantially affects the commercial basis of this Agreement the parties agree to consult together for the purposes of agreeing what action should be taken in the circumstances and, if appropriate, must negotiate in good faith to amend and modify appropriately the provisions and terms of this Agreement as necessary to deal with the reason for the inability to perform.
  3. If such negotiations are unsuccessful the party not claiming relief under this clause has the right to terminate this Agreement upon giving 20 business days written notice of such termination to the other party.
5. Except as expressly provided to the contrary in these terms, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Software, are excluded.
6. Without limiting the generality of the preceding subclause, we are not liable in contract or tort or any other basis of legal liability in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly as a result of any failure or omission on the part of us to comply with its obligations under these terms.
7. To the extent allowed by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with our Services is limited to the amount available to be payable under the Professional Indemnity Insurance held by Urban Lightbulb Limited (if any).
8. Where the project does not have Professional Indemnity Insurance Cover, liability is limited to the services contemplated by your engagement with us.
9. If you require Professional Indemnity Insurance cover, please communicate to us what your requirements are and we will negotiate terms of same.
10. The liability of the us (being Urban Lightbulb Limited and not us personally) under this Agreement is limited, at the option of us, to any one or more of the following:
  1. the supplying of the services again; or
  2. the payment of the cost of having the services supplied again where there is loss or damage is equivalent or more than the loss suffered.
Intellectual Property Infringement
1. Subject to clauses 10(ii) to 10(iv), the Developer agrees to indemnify the Client against liability under any final judgment in proceedings brought by a third party against the Client determining that the Client’s use of the Software breaches the intellectual property rights of a third party.
  1. The Developer is not liable to indemnify the Client unless the Client:
  2. notifies the Developer in writing as soon as practicable of any infringement or alleged infringement;
  3. gives the Developer the option to conduct the defence of such a claim, including negotiations for settlement or compromise;
  4. provides the Developer with reasonable assistance in conducting the defence of such a claim, at the Developer’s expense;
  5. permits the Developer to modify, alter or substitute the Software, at the Developer’s expense, to render the Software non-infringing; and
  6. authorises the Developer in consultation with the Client to procure for the Client the authority to continue to use and possess the Software.
2. The Developer is not liable to indemnify the Client if such infringement, suspected infringement or alleged infringement arises from:
  1. use of the Software in a manner or for a purpose or in a combination by any means and in any form with computer software or equipment other than that for which it was developed;
  2. modification or alteration of the Software without the prior consent in writing of the Developer; or
  3. software, data, information or equipment provided to the Developer by the Client the use or possession of which infringes the rights of third parties.
3. The Client agrees to indemnify the Developer against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:
  1. the claim arises from an event specified in clauses 10(b)(i) to 10(b)(iii);
  2. the ability of the Developer to defend the claim has been prejudiced by the failure of the Client to comply with the provisions in clause 9(c); or
  3. information provided to the Developer by the Client to enable the Developer to develop the Software breaches any intellectual property rights of a third party.
Communications
1. We will report to you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the work being undertaken. You may request a progress report at any time.
Confidential Information
1. Confidence

The parties agree to keep all Confidential Information obtained during the course of any project or service confidential. We will not disclose any of this information to any other person except:

to the extent necessary or desirable to enable us to carry out your instructions;
as expressly or impliedly agreed by you;
as necessary to protect our interests in respect of any complaint or dispute; or
to the extent required or permitted by law.

Confidential Information means

(a) Confidential Information for the purposes of this agreement includes all inventions, techniques (including trade secrets) and information regarding the current or future business interests, methodology or affairs of either party or any person or entity with which they may deal or be concerned with and which has not previously been made public through no fault of the party claiming that this exception applies. Confidential Information extends to all information known that has been obtained during the term of this agreement about any third party.

(b) Such Confidential Information includes matters of a technical nature, research and development information, notes, products, know-how, trade secrets, engineering or other data, specifications, processes, formulae, manufacturing, planning or marketing procedures, techniques or information, accounting procedures or financial information.

(c) Such Confidential Information also includes the possible or likely function, purpose or application of the above items whether in the current activities of either party or fields to which the activities of either party may reasonably extend from time to time; any part of, or improvements to the above items; any recommendation, test or report of either party or any of its consultants or agents in connection with the above items; and whether such Confidential Information is oral, written, recorded or stored by electronic, magnetic, electro magnetic or other process or otherwise in a machine readable form; translated from the original form, recompiled, made into a compilation, partially copied, modified, updated or otherwise altered; originated or obtained by, or coming into the possession, custody, control or knowledge of, either party performing its obligations under this Agreement.

Access

Each party acknowledges that in the course of the performance of its obligations under this agreement, or otherwise, it may obtain access to, or become aware of, Confidential Information which is, owned by, or lawfully in the possession of, the other party.

Non-disclosure

Each party agrees not to disclose, communicate to or place at the disposal of any third party, the Confidential Information in any form or by any means and to keep the Confidential Information in the strictest confidence.

Authorised disclosure

If one party authorises the other party to disclose any Confidential Information to any person that party agrees, prior to such disclosure, to have such person sign an acknowledgement, to the effect that the information is disclosed to that person in confidence. If disclosure is required by law the parties agree to consult together on the request for disclosure and the appropriate response before the Confidential Information is disclosed.

Use

Other than in accordance with the terms of this Agreement each party agrees not to use or modify the other’s Confidential Information for its own benefit or the benefit of any other person.

Safe custody

1. 1. To ensure the continued proprietary and confidential nature of the Confidential Information each party agrees to:
    1. initiate and maintain a system for the proper and secure custody of any Confidential Information within its custody or control, there is no prescribed method for adhering to this clause but each party must take reasonable steps to ensure data is safe;
    2. obtain the signature of confidentiality undertakings by its advisers, employers, and contractors, if reasonably required by the other party.

Re-delivery

1. If either party so requests upon reasonable notice, the other party agrees immediately to:
  1. disclose and deliver to, or do everything necessary to procure the disclosure and delivery to, the requesting party or as it may direct, all Confidential Information (including copies) which is in a physical form whether those copies are in the same form as the original or capable of being recreated into such or other form by any method;
  2. deliver any part of the Confidential Information which is stored by any means by which no original or copy is kept at the relevant time (but by use of any method, an original or copy may be re-created) by creating and delivering a printed copy of such Confidential Information to the requesting party or as it may direct, and then destroying the means of re-creation so as to prevent the future recreation of such Confidential Information;
  3. certify in writing to the requesting party that it has returned all forms of Confidential Information and that it no longer has any part of the Confidential Information in its possession, custody or control;
  4. ensure that the requesting party, its officers or agents have access to the premises in which Confidential Information may be, or is supposed to be, or has been kept from time to time.

Termination
1. The Client may terminate the Developer’s services.
2. If our retainer is terminated you must pay us all fees, disbursements and expenses incurred up to the date of termination including fees which are out of pocket expenses and have been incurred in connection with your work or project.
3. Confidentiality, indemnities and Intellectual Property rights contemplated by these terms survive termination.
4. Clause (b) above is to be read subject to the terms of these terms and in particular section 21(3) of the Copyright Act 1993.

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