These Standard Terms and Conditions set out the basis upon which Stellar Consulting Group Limited (“Stellar”) will perform services and provide and licence deliverables to the Customer as described in any Statement of Work between the Customer and Stellar.
1. DEFINITIONS
“Agreement” means these Standard Terms and Conditions and the relevant SOW.
“Customer” means the individual, company or other legal entity that has engaged Stellar under the relevant SOW.
“Confidential Information” means information, data and know-how whether technical or not, which is disclosed by either party to the other which is either marked or stated to be confidential, or is by its nature reasonably intended to be confidential, but will not include information, data or know-how that is generally available to the public or already known to the recipient at the time of its disclosure, nor information, data or know-how which enters the public domain through no fault of the recipient.
“Charges” means the fees and disbursements payable by the Customer following clause 5 and as specified in the relevant SOW.
“Deliverable” means a deliverable to be provided under this Agreement.
“Intellectual Property” means all intellectual property rights including (without limitation) patents, copyright, registered designs, trademarks, trade secrets, ideas, concepts, know-how and techniques.
“Notice” has the meaning given to it in clause 15.1.
“Service” means service to be provided under this Agreement.
“Standard Terms and Conditions” or “T&Cs” means these Standard Terms and Conditions.
“SOW” or “Statement of Work” means any document executed by the parties which specifies the Deliverables and Services to be provided and the applicable fees.
“Support Charges” has the meaning given to it in clause 11.2.
“Supported Software” has the meaning given to it in clause 11.2.
“Working Day” means a day on which registered banks are generally open for banking business in Auckland and excludes Saturdays, Sundays and public holidays.
1.1 Words defined here will have the same meaning in these T&Cs and each SOW.
2. SOWs
2.1 By engaging Stellar according to an SOW, the Customer agrees to these T&Cs. Each SOW will incorporate these T&Cs and together they will form a single agreement. If there is any inconsistency between an SOW and these T&Cs, these T&Cs will prevail.
3. TERM
3.1 This Agreement will start on the date and will remain in effect for, the term specified in the SOW or until terminated following these T&Cs.
4. STELLAR OBLIGATIONS
4.1 Stellar will provide the Deliverables and Services specified in the relevant SOW (using employees or sub-contractors). In providing the Deliverables and Services Stellar will at all times act professionally and competently following generally accepted industry standards. Stellar will use all reasonable commercial efforts to meet any dates specified in an SOW for the completion of performance milestones. The Customer acknowledges that given the nature of data, analytics and business intelligence project work it is not always possible to precisely identify dates for the completion of performance milestones.
5. PAYMENT
5.1 In return for the provision of the Deliverables and Services, the Customer will pay the fees specified in the relevant SOW. The Customer will also pay all disbursements reasonably incurred by Stellar in the provision of the Services including but not limited to travel, meals and accommodation.
5.2 The Charges will be invoiced to the Customer monthly in arrears. The customer will pay Stellar all GST (where applicable and at the applicable rate) in addition to the Charges. All invoices received by the Customer on or before the 10th day of a month will be due and paid on the 20th day of that same month.
5.3 If the Customer does not pay an invoice on or by the due date, then Stellar may charge interest on any unpaid amount from the due date at the rate of Stellar’s current overdraft interest rate and any costs of collection.
6. CUSTOMER OBLIGATIONS
6.1 In addition to the Customer’s payment obligations, the Customer will:
(a) Provide promptly all relevant information, directions, assistance and co-operation as and when reasonably required by Stellar.
(b) Provide Stellar with reasonable access to the Customer’s premises, facilities and support services, including for auditing compliance with this Agreement.
(c) Comply with any Customer obligations specified in the relevant SOW.
7. ACCEPTANCE OF DELIVERABLES
7.1 A SOW may specify that acceptance testing is required for certain Deliverables and the applicable acceptance criteria for those Deliverables. Stellar will be entitled to observe the performance of any user acceptance tests. Any rework for a Deliverable will be at the Customer’s cost unless otherwise agreed in writing between the parties.
8. PERSONNEL
8.1 Stellar may replace any person identified by name in the SOW at any time.
9. CONFIDENTIALITY
9.1 Except as provided for under clause 9.3 or where disclosure is required by law, each party agrees not to disclose or otherwise publish any Confidential Information received from the other party without the prior written consent of the other party.
9.2 Each party agrees not to use the Confidential Information for any purpose other than that for which the information was provided. In the case of any uncertainty, prior clearance shall be obtained from the other party.
9.3 When disclosure to employees, sub-contractors or agents is necessary the recipient shall ensure that they are bound by equivalent duties of confidentiality and non-use as those set out in this Agreement.
9.4 The recipient shall take all reasonable care to ensure that all materials in the possession of recipient that contain Confidential Information be securely kept, and shall return or destroy all material containing Confidential Information on the direction of the other party.
10. INTELLECTUAL PROPERTY AND LICENCE
10.1 Ownership of any existing Intellectual Property remains with its owner. Any Intellectual Property created by Stellar, its employees or sub-contractors in the performance of this Agreement will vest on its creation in Stellar.
10.2 Subject to payment of all applicable Charges for the Deliverables provided to the Customer, Stellar grants the Customer a perpetual (unless otherwise agreed), non-exclusive and non-transferable license to use the Deliverables for its internal purposes, following the terms and conditions of the Agreement.
10.3 Customer acknowledges that the Intellectual Property in the Deliverables belongs to Stellar and Customer will not dispute such ownership.
10.4 All information contained in or relating to the Deliverables will be treated by Customer as Stellar’s Confidential Information.
10.5 Customer may not copy the Deliverable or any related documentation in whole or in part in any visual or machine-readable form, except to the extent that such copying is necessary for Customer’s back-up purposes.
10.6 Customer undertakes that it will:
(a) not reproduce, translate, reverse-engineer, adapt, vary or modify the Deliverable nor communicate the same to any person except as permitted by this clause;
(b) take all reasonable steps to ensure the non-disclosure and confidentiality of the Deliverable and all matters relating to the Deliverable at all times;
(c) use its best endeavours to bind its employees and agents not to disclose, communicate or copy for any purpose whatsoever the Deliverable or any part thereof except as permitted by clause 10.5;
(d) not transfer, assign or otherwise deal in the Deliverable or Customer’s rights under this Agreement;
(e) maintain all copyright notices on the Deliverable and manuals relating to the Deliverable and not remove the same;
(f) notify Stellar in writing immediately it knows of the existence of any circumstances which may suggest that any person may have unauthorised knowledge, possession or use of the Deliverable.
10.7 The parties’ rights and obligations under clause 10 will survive termination of this Agreement, except that Stellar can immediately terminate the licence described in clause 10.2 if the Customer breaches this Agreement. In such circumstances, the Customer must cease using and delivering to Stellar all copies of the Deliverable and related documentation in whatever form possessed by Customer.
11. SUPPORT AND MAINTENANCE
11.1 Customer acknowledges that unless expressly agreed with Stellar, Stellar is under no obligation to provide support and maintenance services concerning Deliverables.
11.2 To the extent support and maintenance services concerning specified software (“Supported Software”) are agreed to be included in the Services the following provisions apply to such services:
(a) Subject to payment of all applicable Charges for such support (“Support Charges”), Stellar will provide to Customer the agreed software support and maintenance for the Supported Software during the agreed support period.
(b) Stellar will not be obliged to provide support or training other than that which is customarily provided to its other clients for similar software.
(c) support will be provided during the agreed support hours.
(d) Stellar may charge additional fees at its then-current hourly rates for:
(i) support provided outside agreed support hours;
(ii) support required due to fluctuations in external power supply;
(iii) support required due to failure by Customer to maintain the Supported Software in the environmental conditions specified by Stellar;
(iv) support required due to improper use or misuse of the Supported Software, including failure to adhere to any written or verbal operating instructions or procedures laid down by Stellar;
(v) preparation and/or provision of additional or replacement software;
(vi) repair of Customer’s data;
(vii) unauthorised maintenance, alteration or modification made to the Supported Software by any person other than Stellar.
(e) If the Customer’s site where the Supported Software is located is more than 30 kilometres from Stellar’s place of business, the Customer will pay all reasonable travel and accommodation expenses incurred by Stellar with visits to the site to provide support and maintenance services.
11.3 Stellar may increase the Support Charges for the Supported Software from time to time upon one month’s written notice to the Customer.
11.4 Nothing in this Agreement will require Stellar to carry out, without extra charge, any alteration or modification to the Deliverables.
12. TERMINATION
12.1 Either party may terminate this Agreement immediately upon written notice if:
(a) The other party has committed a material breach of this Agreement and such breach is either not capable of remedy or not remedied within 20 Working Days of written notice specifying the breach (failure to pay an invoice on its due date is a material breach); or
(b) The other party becomes insolvent or is unlikely to meet its obligations under this Agreement for financial reasons.
12.2 Upon the expiry or termination of this Agreement:
(a) The following clauses, together with those other provisions of this Agreement that are incidental to, and required to give effect to those clauses, will remain in full force and effect: clause 5 (Payment), 9 (Confidentiality), 10 (Intellectual Property), 12.2 (Consequences of Termination), 13 (Limitation of Liability) and 14 (Non-solicitation).
(b) Each party will promptly return to the owner all Confidential Information and, after delivering a copy to the owner, delete all computer records of such information held by it on any computer system.
(c) The Customer will pay all fees for time accrued, and disbursements incurred, to the date of expiry or termination whether or not invoiced at that time.
(d) Accrued rights and liabilities of either party under this Agreement will not be affected and termination will be without prejudice to any other rights or remedies of the parties.
13. LIMITATION OF LIABILITY
13.1 Except as expressly provided in this Agreement, all representations or warranties (statutory, express or implied), are, to the maximum extent permitted by law, expressly excluded, including without limitation, the implied warranties of merchantability and fitness for a particular purpose.
13.2 Notwithstanding any other provision in this Agreement, Stellar will not be liable to the Customer (under the law of contract, tort, equity or otherwise) for any damages of any kind arising out of or in connection with this Agreement that is indirect or consequential or for any loss of revenue, sales, profits, business or any other economic loss or any loss of goodwill, regardless of the cause of such damages.
13.3 Notwithstanding any other provision in this Agreement, Stellar’s aggregate liability to the Customer for loss or damages (under the law of contract, tort, equity or otherwise) arising out of or in connection with this Agreement shall not exceed the total amount received by Stellar from the Customer for the Services and Deliverables the subject of the claim in any 12 months under this Agreement.
13.4 No action arising out of this Agreement, regardless of the form, may be brought by either party more than 12 months after the cause of action arose.
14. NON-SOLICITATION
14.1 From the commencement of this Agreement until 6 months after its termination or expiry, neither party will, without the other party’s prior written consent solicit any of the other party’s employees to procure them to be employed, contracted or taken into partnership by that party or by one of its related companies or sub-contractors.
15. NOTICES
15.1 Any notice (“Notice”) to be given for this Agreement or SOW must be in writing and sent by registered or electronic mail to the other party.
15.2 Notices given by post are deemed served 2 Working Days after posting and by electronic mail upon correct transmission. Any Notice served on a non-Working Day, is deemed served on the Next Working Day.
16. GENERAL
16.1 This Agreement records the entire arrangement between the parties and supersedes all previous arrangements, whether written, oral or both relating to its subject matter.
16.2 This Agreement cannot be amended, modified, varied or supplemented except in writing signed by both parties.
16.3 Any failure or delay by either party in exercising any right or remedy will not constitute a waiver of that right or remedy.
16.4 Neither party shall be liable for any act, omission or failure under this Agreement if that act, omission or failure arises directly from a cause beyond the reasonable control of the party concerned, including (without limitation) extreme weather conditions, industrial action or power outage.
16.5 If any provision of this Agreement is illegal, unenforceable or otherwise invalid the remainder of this Agreement will remain in full force and effect.
16.6 Stellar will provide the Deliverables as an independent contractor. Nothing shall be construed to create a partnership, joint venture or other relationship between Stellar and the Customer.
16.7 Neither party may assign all or any part of its rights under this Agreement without the prior written consent of the other party which shall not be unreasonably withheld.
16.8 This Agreement is governed by the laws of New Zealand.