Standard Services Terms v1.2

Last updated: 13/04/2022 and valid from: 15/05/2022 [previous version here]

1. TERMS

1.1 Unless otherwise expressly agreed between Convergence Limited (“Convergence”) and a client (“Customer”) and subject to clause 1.2, these terms will apply to the provision of all services by Convergence to the Customer, and are to be read in conjunction with any corresponding Statements of Work entered into with the Customer (“SOW”). Each SOW together with these terms forms a separate agreement (“Agreement”).

1.2 These terms do not apply to software development or IT support services where Convergence and the Customer may have entered into separate written agreements dealing with those subject matters.

1.3 Convergence may modify or amend these terms on 30 days’ prior written notice.

2. SERVICES

2.1 Convergence will use its reasonable endeavours to complete the services within the timeframe (if any) agreed by the parties in any corresponding SOW.

2.2 The Customer acknowledges that the services cannot be performed until it has given Convergence all of the content and other materials and matters reasonably required by Convergence. Convergence will have no liability for any delays or failure where such delays or failure is the direct or indirect result of any act or omission of the Customer or a breach by the Customer of this agreement.

3. ACCESS

3.1 The Customer shall ensure that Convergence and its personnel have full and safe access to the Customer’s premises and/or any necessary equipment, materials and information.

4. WARRANTY AND LIMITATION OF LIABILITY

4.1 Convergence warrants for a 30-day period (“Warranty Period”) that the services to be performed by it will be performed with due care and skill.

4.2 The Customer’s sole remedy for a breach of the warranty is limited, at Convergence’s option, to one of the following:
a. the supplying of the services again at no additional charge; or
b. the refund of any charges paid to Convergence for the defective services.

4.3 If the SOW requires Convergence to procure and supply to the Customer any third party products, Convergence makes no warranties with respect to those products unless provided in writing in an attachment to the SOW. The Customer’s rights against Convergence in relation to any third party products are limited as set out in this agreement and in any relevant attachment.

4.4 The Customer is fully responsible for its use of the results of Convergence’s services and indemnifies and holds harmless Convergence in connection with any claim relating to the Customer’s or any third party’s use of or reliance on such results.

4.5 Except for the warranty provided in clause 4.1, to the fullest extent permitted by law, all warranties and conditions, whether express or implied, are excluded including but not limited to implied warranties of merchantability and fitness for a particular purpose.

4.6 Convergence, its officers, employees, contractors or agents will not be liable in contract, tort, or otherwise to the Customer for any direct or indirect damage, loss or cost arising directly or indirectly from any of Convergence’s acts or omissions.

4.7 If the Customer is using the services for the purposes of a business, then it agrees that the provisions of the Consumer Guarantees Act 1993 will not apply to its use of or any reliance on any services.

4.8 If Convergence is held liable to the Customer for any reason, Convergence’s maximum liability is the amount paid by the Customer for the services to which the liability relates.

4.9 No claim will be valid unless the Customer gives Convergence written notice of the claim within 6 months after it becomes aware or should have become aware of the circumstances giving rise to such claim.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 Upon final payment, and subject to clause 5.2, Convergence grants to the Customer a perpetual, non-transferable, non-exclusive paid-up right and licence for its own internal business purposes to use, copy, modify and prepare derivative works of any deliverables originally developed for and provided to the Customer pursuant to this agreement (whether jointly or separately prepared). All other intellectual property rights in the deliverable items remain in and/or are assigned to Convergence.

5.2 The Customer acknowledges and agrees that in the course of its performance of the services Convergence may use products, materials or methodologies proprietary to it or a third party (“Tools”). Except to the extent that those Tools form part of the deliverable items or are licensed to the Customer under separate licence agreements, the Customer agrees that it will have or obtain no rights in such Tools.

6. CHARGES & PAYMENT

6.1 The Customer must pay Convergence the charges plus GST (and any other charges payable under this agreement) in accordance with the payment terms or, if no payment terms are specified, on or before the 20th day of the month following the invoice date.

6.2 If the Customer fails to make payment of any amount due under this agreement by the due date, Convergence may without prejudice to its other rights require the Customer to pay interest on the amount due from the due date until the date of payment, at a rate equal to 5% above the current overdraft rate that Convergence has with its principal banker (in addition to the Customer remaining liable for the full amount outstanding).

7. CONFIDENTIALTY

7.1 Each party agrees to protect and keep secret the confidential information of the other in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such confidential information. This obligation does not extend to information which:
a. is previously known to it without an obligation of confidence; or
b. is independently developed by or for the receiving party without access to the other party’s confidential information; or
c. is acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information; or
d. is or becomes publicly available through no breach of this agreement; or
e. is required to be disclosed by law.

7.2 Each party agrees to return to the other all confidential information made available under this agreement, including copies thereof, on request by the disclosing party.

8. HIRING RESTRAINTS

8.1 Neither party will, without the prior written consent of the other, offer, or cause a third party to offer on its behalf, employment to the other party’s personnel (whether employees or subcontractors). This restriction will apply throughout the term of this agreement and for a period of 6 months thereafter.

8.2 Should either party hire any individual associated with the other in breach of clause 8.1 then that party will be required to immediately pay to the other a fee of 15% of the total remuneration package the individual receives upon commencement of their employment with that party.

9. TERMINATION

9.1 This agreement remains in force unless and until terminated in accordance with the terms of this clause 9.

9.2 Unless the parties have agreed to a fixed term, this agreement may be terminated by either party on 30 days prior written notice.

9.3 Either party may terminate this agreement immediately by notice in writing if:
a. the other party breaches any term of this agreement and such breach is not remedied within 14 days of notification by that party;
b. the other party becomes, threatens or resolves to become subject to any form of insolvency administration; or
c. the other party ceases or threatens to cease conducting its business in the normal manner.

9.4 Termination shall be without prejudice to any rights or remedies, which either party has against the other.

9.5 Upon termination for any reason, the Customer will pay Convergence for all services rendered and expenses incurred prior to the date of termination, immediately on presentation of one or several corresponding invoice(s).

10. GENERAL

10.1 Excusable delay: No party will be liable for any failure or delay in performing its obligations under this agreement if such failure or delay arises directly or indirectly from an event reasonably unforeseeable or beyond its control.

10.2 Independent Contractor: In connection with this agreement, each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing in this agreement will be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the parties for any purpose.

10.3 Subcontracts: Convergence may with the prior consent of the Customer subcontract for the performance of this agreement in whole or part, such consent not to be unreasonably withheld. Convergence may, without the consent of the Customer, engage individuals on a subcontract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of the services pursuant to this agreement.

10.4 Assignment: The Customer may not assign the benefit of this agreement or transfer, sub-licence or otherwise dispose of its interest in this agreement without Convergence’s written consent. Convergence may at any time assign its rights in this agreement to a third party.

10.5 Waiver: Any delay or failure to exercise any rights under this agreement will not operate as a waiver of that right. A waiver is only effective if it is in writing. A waiver of any breach is not a waiver of any other breach.

10.6 Conflict: In the event of a conflict between any term and condition of the SOW and these terms, the term and conditions of the SOW will prevail.

10.7 Governing Law: New Zealand law governs this agreement and the parties submit to the non-exclusive jurisdiction of the New Zealand Courts.