Terms of Business.

Our standard terms of business.

Key terms

By entering into a Statement of Work, Service Level Agreement, or such other Order, (“Client”) has appointed DNA DESIGNED COMMUNICATIONS LIMITED (“DNA”) to provide the Services, and DNA has agreed to provide those Services, on the terms and conditions set out in this Agreement.

This agreement is comprised of two parts which, together with any agreed Orders, will constitute the “Agreement”:
Part 1: Key Terms (Key Terms), which sets out the specific details of each party; and
Part 2: Standard Terms (Terms and Conditions), which sets out the standard terms and conditions that apply to the provision of Services.

By entering into a Statement of Work, Service Level Agreement, or such other Order, (“Client”) has appointed DNA DESIGNED COMMUNICATIONS LIMITED (“DNA”) to provide the Services, and DNA has agreed to provide those Services, on the terms and conditions set out in this Agreement.

This agreement is comprised of two parts which, together with any agreed Orders, will constitute the “Agreement”:
Part 1: Key Terms (Key Terms), which sets out the specific details of each party; and
Part 2: Standard Terms (Terms and Conditions), which sets out the standard terms and conditions that apply to the provision of Services.

Date

13 September 2021

13 September 2021

Standard terms.

Definitions and interpretations. 

1.1 In this agreement:
Assumptions means any assumptions listed in an Order;

Change Management Procedure means the procedure for changing this Agreement as set out in clauses 9.1 to 9.5;

Charges mean all costs, fees, charges, commissions and disbursements payable by Client in relation to the Deliverables and the Services, in each case as set out in the relevant Order or as otherwise specified in this Agreement;

Commencement Date means the commencement date specified in the Key Terms;

Confidential Information means information that is by its nature confidential, is designated as confidential or the Recipient knows or ought reasonably to know is confidential, and includes any information relating to the financial affairs, assets or liability of the Disclosing Party, or any information relating to the internal management of Disclosing Party, its personnel, policies, plans, strategies, customers, suppliers, products or services, but does not include any information which:

(a) is or becomes generally known to the public other than through a breach of this Agreement;
(b) at the time it was first disclosed to the Recipient, was already in that party’s possession;
(c) is developed independently by the Recipient; or
(d) is disclosed to the Recipient by a third party entitled to disclose it;

Deliverable means each item to be delivered by the Supplier under an Order;

Dependencies means any dependencies listed in an Order;

Disclosing Party has the meaning given in clause 6.1;

End Date means the end date specified in the Key Terms;

Inputs means any tasks, deliverables, information, assistance or other input that Client is required to provide to DNA, as specified in an Order;

Intellectual Property Rights means all intellectual property rights, including patents, trade marks, trade names, designs, and applications for any of them, trade or business names, copyright, moral rights and anything else recognised as intellectual or proprietary property;

Key Personnel means the named “Key Personnel” who are considered essential in the provision of the Deliverables and are listed in the relevant Order;

Key Terms means the key terms that are set out as “Part 1 – Key Terms” to this Agreement;

Laws means any applicable statue, regulation, by-law, ordinance, subordinate legislation, common law, rule of equity, mandatory standard or mandatory code of conduct;

Letter of Agreement means a written document that acknowledges work to be carried out prior to or in the place of terms of business being agreed between the Parties.

Order means a form of document under which DNA will undertake a Project in accordance with this Agreement, including a Statement of Work, a Service Level Agreement, Letter of Agreement and any other form of written order accepted in writing by the Client;

Personnel means personnel who are engaged by DNA to perform any Services;

Pre-existing Intellectual Property Rights means the Intellectual Property Rights of a party existing prior to the Commencement Date, or that are subsequently brought into existence other than in the course of performing this Agreement, and any improvements, enhancements, modifications or developments to those Intellectual Property Rights.

Project means a project under which DNA will deliver a Solution to Client;

Recipient has the meaning given in clause 6.1;

Service means the services to be provided by DNA to Client as specified in any Statement of Work, including strategic, creative, planning, interaction, design, management, development, delivery or research input services, as appropriate;

Service Level Agreement means a written document under which DNA will commit to provide Services to meet certain defined service levels;

Solution means the solution, consisting of Deliverables and/or Services, to be developed under an Order;

Statement of Work means each written document, in substantially similar form to that attached as Schedule 1 to these Terms and Conditions or such other form as provided by DNA, and executed by both parties;

Stranded Costs means all outstanding expenses necessarily incurred or committed to by DNA up to the date of termination for convenience, or a suspension of a Project, by Client in accordance with this Agreement, includes Client paying DNA all or part of the outstanding contract rate if DNA is unable to redeploy any Personnel. Such costs will be accepted to the extent that these cannot be mitigated by for example, redeploying staff or cancelling orders and provided such costs and expenses have been agreed by Client prior to being incurred;

Terms and Conditions means the terms and conditions set out in this, “Part 2 – Terms and Conditions” of the Agreement; and

Working Day means a day that is not a Saturday, Sunday or public holiday in Auckland and Wellington, New Zealand.

1.2 Unless the context requires otherwise, in this Agreement:

(a) capitalised terms have the meaning given in clause 1.1 or as otherwise assigned to them in this Agreement;
(b) words in the singular include the plural, and vice versa;
(c) a reference to currency is a reference to New Zealand dollars;
(d) a reference to a document includes that document as modified or replaced from time to time;
(e) use of the term “includes” or “including” shall be constructed without limitation;
(f) reference to a statute or regulation or code means that statute or regulation or code as amended or re-enacted and includes subordinate legislation;
(g) a reference to a clause is to a clause in this Agreement, and a reference to a schedule is a reference to a schedule to this Agreement; and
(h) to the extent that there is any inconsistency between these Terms and Conditions or any Order, schedule or other attachment that forms part of this Agreement, then the Order, schedule or any attachment that forms part of this Agreement will prevail.

1.1 In this agreement:
Assumptions means any assumptions listed in an Order;

Change Management Procedure means the procedure for changing this Agreement as set out in clauses 9.1 to 9.5;

Charges mean all costs, fees, charges, commissions and disbursements payable by Client in relation to the Deliverables and the Services, in each case as set out in the relevant Order or as otherwise specified in this Agreement;

Commencement Date means the commencement date specified in the Key Terms;

Confidential Information means information that is by its nature confidential, is designated as confidential or the Recipient knows or ought reasonably to know is confidential, and includes any information relating to the financial affairs, assets or liability of the Disclosing Party, or any information relating to the internal management of Disclosing Party, its personnel, policies, plans, strategies, customers, suppliers, products or services, but does not include any information which:

(a) is or becomes generally known to the public other than through a breach of this Agreement;
(b) at the time it was first disclosed to the Recipient, was already in that party’s possession;
(c) is developed independently by the Recipient; or
(d) is disclosed to the Recipient by a third party entitled to disclose it;

Deliverable means each item to be delivered by the Supplier under an Order;

Dependencies means any dependencies listed in an Order;

Disclosing Party has the meaning given in clause 6.1;

End Date means the end date specified in the Key Terms;

Inputs means any tasks, deliverables, information, assistance or other input that Client is required to provide to DNA, as specified in an Order;

Intellectual Property Rights means all intellectual property rights, including patents, trade marks, trade names, designs, and applications for any of them, trade or business names, copyright, moral rights and anything else recognised as intellectual or proprietary property;

Key Personnel means the named “Key Personnel” who are considered essential in the provision of the Deliverables and are listed in the relevant Order;

Key Terms means the key terms that are set out as “Part 1 – Key Terms” to this Agreement;

Laws means any applicable statue, regulation, by-law, ordinance, subordinate legislation, common law, rule of equity, mandatory standard or mandatory code of conduct;

Letter of Agreement means a written document that acknowledges work to be carried out prior to or in the place of terms of business being agreed between the Parties.

Order means a form of document under which DNA will undertake a Project in accordance with this Agreement, including a Statement of Work, a Service Level Agreement, Letter of Agreement and any other form of written order accepted in writing by the Client;

Personnel means personnel who are engaged by DNA to perform any Services;

Pre-existing Intellectual Property Rights means the Intellectual Property Rights of a party existing prior to the Commencement Date, or that are subsequently brought into existence other than in the course of performing this Agreement, and any improvements, enhancements, modifications or developments to those Intellectual Property Rights.

Project means a project under which DNA will deliver a Solution to Client;

Recipient has the meaning given in clause 6.1;

Service means the services to be provided by DNA to Client as specified in any Statement of Work, including strategic, creative, planning, interaction, design, management, development, delivery or research input services, as appropriate;

Service Level Agreement means a written document under which DNA will commit to provide Services to meet certain defined service levels;

Solution means the solution, consisting of Deliverables and/or Services, to be developed under an Order;

Statement of Work means each written document, in substantially similar form to that attached as Schedule 1 to these Terms and Conditions or such other form as provided by DNA, and executed by both parties;

Stranded Costs means all outstanding expenses necessarily incurred or committed to by DNA up to the date of termination for convenience, or a suspension of a Project, by Client in accordance with this Agreement, includes Client paying DNA all or part of the outstanding contract rate if DNA is unable to redeploy any Personnel. Such costs will be accepted to the extent that these cannot be mitigated by for example, redeploying staff or cancelling orders and provided such costs and expenses have been agreed by Client prior to being incurred;

Terms and Conditions means the terms and conditions set out in this, “Part 2 – Terms and Conditions” of the Agreement; and

Working Day means a day that is not a Saturday, Sunday or public holiday in Auckland and Wellington, New Zealand.

1.2 Unless the context requires otherwise, in this Agreement:

(a) capitalised terms have the meaning given in clause 1.1 or as otherwise assigned to them in this Agreement;
(b) words in the singular include the plural, and vice versa;
(c) a reference to currency is a reference to New Zealand dollars;
(d) a reference to a document includes that document as modified or replaced from time to time;
(e) use of the term “includes” or “including” shall be constructed without limitation;
(f) reference to a statute or regulation or code means that statute or regulation or code as amended or re-enacted and includes subordinate legislation;
(g) a reference to a clause is to a clause in this Agreement, and a reference to a schedule is a reference to a schedule to this Agreement; and
(h) to the extent that there is any inconsistency between these Terms and Conditions or any Order, schedule or other attachment that forms part of this Agreement, then the Order, schedule or any attachment that forms part of this Agreement will prevail.

Service delivery and expectations. 

2.1 DNA agrees to provide to Client, and Client agrees to accept, the Deliverables and Services during the term of this Agreement in accordance with the terms and conditions of this Agreement and the relevant Order.

2.2 Where Client wishes to receive any Deliverables and/or Services: 

(a)  unless otherwise agreed, DNA will submit a draft Order to Client; and
(b)  the parties will work together to jointly finalise that Order.

2.3 For Orders in the form of a Statement of Work, or Service Level Agreement, that Statement of Work, or Service Level Agreement:

(a) will only become binding when both parties have signed it; and
(b) once signed by both parties, will be deemed to be incorporated into, and bound by the terms of, this Agreement.

2.4 Client acknowledges that DNA’s delivery of the Deliverables and provision of the Services:

(a)  is based on the Dependencies and Assumptions as outlined in any Order; and
(b)  relies upon Client providing the Inputs,
and DNA will not be liable for any failure to deliver any Deliverable or provision of any Service to the extent that a Dependency or Assumption is false, or Client fails to, or is delayed, in providing an Input.

2.1 DNA agrees to provide to Client, and Client agrees to accept, the Deliverables and Services during the term of this Agreement in accordance with the terms and conditions of this Agreement and the relevant Order.

2.2 Where Client wishes to receive any Deliverables and/or Services: 

(a)  unless otherwise agreed, DNA will submit a draft Order to Client; and
(b)  the parties will work together to jointly finalise that Order.

2.3 For Orders in the form of a Statement of Work, or Service Level Agreement, that Statement of Work, or Service Level Agreement:

(a) will only become binding when both parties have signed it; and
(b) once signed by both parties, will be deemed to be incorporated into, and bound by the terms of, this Agreement.

2.4 Client acknowledges that DNA’s delivery of the Deliverables and provision of the Services:

(a)  is based on the Dependencies and Assumptions as outlined in any Order; and
(b)  relies upon Client providing the Inputs,
and DNA will not be liable for any failure to deliver any Deliverable or provision of any Service to the extent that a Dependency or Assumption is false, or Client fails to, or is delayed, in providing an Input.

General obligations. 

3.1 The parties will work collaboratively in performing their roles and responsibilities under each Order.

3.2 DNA shall provide the Services and Deliverables:

(a) in a proper, timely and efficient manner using due care, skill and diligence; and
(b) in accordance with all relevant Laws.

3.3 DNA will use all reasonable endeavours to meet any dates, response times or service levels set out in any Order but Client acknowledges and agrees that these are indicative only, and DNA will not be liable if dates, response times or service levels are not met.

3.4 Client will provide DNA with all reasonable assistance to enable DNA to perform its obligations under this Agreement, including making available to DNA its facilities, information, data and equipment in a timely manner to enable DNA to perform the relevant Services.

3.5 If Client fails to comply with its obligations under clause 3.4:

(a) DNA will not be liable for any failure or delay in performing its obligations under this Agreement, and Client will not be relieved from its duty to pay DNA.
(b) and such failure is likely to incur additional time, then DNA will notify Client of this and provide a revised estimate, if required by Client, of the additional Charges that will be payable by Client as a result of the additional time.

3.6 DNA and Client will each appoint, by notice in writing to the other, a relationship manager who will be each party’s key point of contact in relation to this Agreement. The relationship manager, together with such other representatives of the parties who might be required, will meet as regularly as both parties deem necessary during the term of an Order to discuss:

(a) work-in-progress information updates; and
(b) the status, timing, budget, spend committed to date and next steps of all Services and Deliverables being supplied under that Order.

3.7 Should any matters require escalation the relationship managers are the point of contact, unless specifically agreed otherwise in an Order.

3.8 Project Delay: Client may, by written notice to DNA, request a suspension to any Project, in which case:

(a) DNA and Client will work together to agree in good faith a reasonable commercial suspension to DNA's provision of the Services and the date on which the suspension will start (Suspension Date);
(b) Client will pay DNA:

(i) for all Services received by Client up to the Suspension Date; and
(ii) any Stranded Costs associated with the suspension; and

should Client wish to end the suspension and re-start the Project, it acknowledges that it may only do this with the agreement of DNA, and the parties will negotiate in good faith and agree in writing a reasonable restart process and timeframe, and any changes in personnel or rate, if applicable, for the remainder of that Project

3.1 The parties will work collaboratively in performing their roles and responsibilities under each Order.

3.2 DNA shall provide the Services and Deliverables:

(a) in a proper, timely and efficient manner using due care, skill and diligence; and
(b) in accordance with all relevant Laws.

3.3 DNA will use all reasonable endeavours to meet any dates, response times or service levels set out in any Order but Client acknowledges and agrees that these are indicative only, and DNA will not be liable if dates, response times or service levels are not met.

3.4 Client will provide DNA with all reasonable assistance to enable DNA to perform its obligations under this Agreement, including making available to DNA its facilities, information, data and equipment in a timely manner to enable DNA to perform the relevant Services.

3.5 If Client fails to comply with its obligations under clause 3.4:

(a) DNA will not be liable for any failure or delay in performing its obligations under this Agreement, and Client will not be relieved from its duty to pay DNA.
(b) and such failure is likely to incur additional time, then DNA will notify Client of this and provide a revised estimate, if required by Client, of the additional Charges that will be payable by Client as a result of the additional time.

3.6 DNA and Client will each appoint, by notice in writing to the other, a relationship manager who will be each party’s key point of contact in relation to this Agreement. The relationship manager, together with such other representatives of the parties who might be required, will meet as regularly as both parties deem necessary during the term of an Order to discuss:

(a) work-in-progress information updates; and
(b) the status, timing, budget, spend committed to date and next steps of all Services and Deliverables being supplied under that Order.

3.7 Should any matters require escalation the relationship managers are the point of contact, unless specifically agreed otherwise in an Order.

3.8 Project Delay: Client may, by written notice to DNA, request a suspension to any Project, in which case:

(a) DNA and Client will work together to agree in good faith a reasonable commercial suspension to DNA's provision of the Services and the date on which the suspension will start (Suspension Date);
(b) Client will pay DNA:

(i) for all Services received by Client up to the Suspension Date; and
(ii) any Stranded Costs associated with the suspension; and

should Client wish to end the suspension and re-start the Project, it acknowledges that it may only do this with the agreement of DNA, and the parties will negotiate in good faith and agree in writing a reasonable restart process and timeframe, and any changes in personnel or rate, if applicable, for the remainder of that Project

Warranties.

4.1 Both parties warrant that they have full power and authority to enter into and perform their respective obligations under this Agreement.

4.2 DNA warrants that any software developed for the Client will conform to agreed specifications for a period of 90 days following acceptance of the Deliverable.

4.3 Except as expressly set out in this Agreement, to the extent permitted by law DNA disclaims all other warranties, whether express or implied by statute or otherwise, including any warranties of merchantability, fitness for a particular purpose, title and non-infringement. Client acknowledges that it has not relied on any warranties or representations other than those expressly set out in this Agreement.

4.4 The parties both confirm and acknowledge that:

(a) they are each “in trade”;
(b) the Services and Deliverables are supplied to Client in trade and for a business purpose; and
(c) the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 are excluded from this Agreement to the fullest extent permitted by law.

4.1 Both parties warrant that they have full power and authority to enter into and perform their respective obligations under this Agreement.

4.2 DNA warrants that any software developed for the Client will conform to agreed specifications for a period of 90 days following acceptance of the Deliverable.

4.3 Except as expressly set out in this Agreement, to the extent permitted by law DNA disclaims all other warranties, whether express or implied by statute or otherwise, including any warranties of merchantability, fitness for a particular purpose, title and non-infringement. Client acknowledges that it has not relied on any warranties or representations other than those expressly set out in this Agreement.

4.4 The parties both confirm and acknowledge that:

(a) they are each “in trade”;
(b) the Services and Deliverables are supplied to Client in trade and for a business purpose; and
(c) the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 are excluded from this Agreement to the fullest extent permitted by law.

Limitation of liability.

5.1 Neither party will have any liability to the other for any incidental, indirect, special or consequential damages, or for any loss of profits, loss of revenue or savings, loss of goodwill or loss of data, even if the party had been advised, knew, or should have known, of this possibility.

5.2 Each party’s maximum aggregate liability for all loss, costs, damages and expenses, however arising, that are incurred out of or in connection with this Agreement shall be limited to an amount equal to the Charges paid by Client to DNA in the twelve months prior to the date on which the cause of action arose.

5.3 The limit set out in clause 5.2 shall not apply to any loss, cost, damage or expense:

(a) which arises as a result of any fraudulent act or omission;
(b) with respect to the damage, loss or destruction of any real or tangible personal property; or
(c) with respect to the death or bodily injury of a person.

5.1 Neither party will have any liability to the other for any incidental, indirect, special or consequential damages, or for any loss of profits, loss of revenue or savings, loss of goodwill or loss of data, even if the party had been advised, knew, or should have known, of this possibility.

5.2 Each party’s maximum aggregate liability for all loss, costs, damages and expenses, however arising, that are incurred out of or in connection with this Agreement shall be limited to an amount equal to the Charges paid by Client to DNA in the twelve months prior to the date on which the cause of action arose.

5.3 The limit set out in clause 5.2 shall not apply to any loss, cost, damage or expense:

(a) which arises as a result of any fraudulent act or omission;
(b) with respect to the damage, loss or destruction of any real or tangible personal property; or
(c) with respect to the death or bodily injury of a person.

Confidentiality.

6.1 Each party must only use Confidential Information for the purpose of performing its obligations or exercising its rights under this Agreement. A recipient (Recipient) of a disclosing party’s (Disclosing Party) Confidential Information must not disclose that Confidential Information to anyone other than the Recipient’s Personnel on a need-to- know basis for the purposes of the performance of this Agreement.

6.2 The Recipient’s obligations of confidentiality do not prevent:

(a) any use or disclosure by the Recipient authorised in writing by the Disclosing Party; or
(b) any disclosure that is required by law, provided before making disclosure the Recipient (if permitted by law) notifies the Disclosing Party and, where practical, provides any assistance reasonably requested by the Disclosing Party to obtain an order protecting the Confidential Information. 

6.3 The Recipient must treat, and ensure that its relevant Personnel treat, the Confidential Information in strictest confidence, applying at least the same standard of care as the Recipient exercises for its own information of a similar nature and sensitivity.

6.4 If DNA wishes to use any work produced for Client for the promotion of DNA, including the entry into industry awards, it must first obtain Client’s written consent. Client must not unreasonably withhold its consent.

6.1 Each party must only use Confidential Information for the purpose of performing its obligations or exercising its rights under this Agreement. A recipient (Recipient) of a disclosing party’s (Disclosing Party) Confidential Information must not disclose that Confidential Information to anyone other than the Recipient’s Personnel on a need-to- know basis for the purposes of the performance of this Agreement.

6.2 The Recipient’s obligations of confidentiality do not prevent:

(a) any use or disclosure by the Recipient authorised in writing by the Disclosing Party; or
(b) any disclosure that is required by law, provided before making disclosure the Recipient (if permitted by law) notifies the Disclosing Party and, where practical, provides any assistance reasonably requested by the Disclosing Party to obtain an order protecting the Confidential Information. 

6.3 The Recipient must treat, and ensure that its relevant Personnel treat, the Confidential Information in strictest confidence, applying at least the same standard of care as the Recipient exercises for its own information of a similar nature and sensitivity.

6.4 If DNA wishes to use any work produced for Client for the promotion of DNA, including the entry into industry awards, it must first obtain Client’s written consent. Client must not unreasonably withhold its consent.

Intellectual property and liability. 

7.1 Subject to clauses 7.2 and 7.3, Client agrees that ownership of all Intellectual Property Rights newly arising out of the provision of the Services will vest in Client at the time Client pays all of the Charges for the Services as detailed in each DNA invoice.

7.2 DNA and Client agree that each party retains ownership of its Pre-existing Intellectual Property Rights.

7.3 Client acknowledges that, following the provision of any Open Source licence terms from DNA and subsequent approval from the Client:

(a) DNA may incorporate into any Services or Deliverables open-source software libraries, software or technology systems that have been licenced under an open- source licence (Open Source IP);
(b) such Open Source IP will be licensed to Client on the terms of the relevant open- source licence; and
(c) DNA can submit improvements or other elements of the Open Source IP (e.g. bug patches) to the relevant open source project.

7.4 To the extent that the Services incorporate any third party Intellectual Property Rights that is not Open Source IP, DNA will ensure that it has all required rights to use those Intellectual Property Rights and, if necessary, to allow Client to use those Intellectual Property Rights solely as necessary in order to obtain the benefit of the Services.

7.5 DNA will notify Client of any infringement of Intellectual Property Rights, other than any infringement of DNA’s Pre-existing Intellectual Property Rights, of which it becomes aware.

7.6 DNA will indemnify and keep indemnified Client in respect of any liability, damages, claims, costs and expenses arising out of a claim by a third party that the use by Client of any Deliverable prepared or submitted by DNA in connection with the Services is in breach of that third party’s Intellectual Property Rights (a Third Party Intellectual Property Claim) and Client will cooperate with DNA’s directions in respect of such infringement.

7.7 The procedure for handling a Third Party Intellectual Property Claim will be as follows:

(a) Client will promptly notify DNA in writing of any Third Party Intellectual Property Claim;
(b) Client will allow DNA to conduct and/or settle all negotiations and litigation resulting from the Third Party Intellectual Property Claim; and
(c) Client will provide DNA will all assistance requested by DNA in respect to the handling of the Third Party Intellectual Property Claim, such assistance to be provided at DNA’s expense.

7.8 If Client is unable to use any Deliverables because they infringe a third party’s Intellectual Property Rights, then DNA will, at its own discretion:

(a) modify the Deliverables so that they are not infringing;
(b) obtain alternative deliverables of substantially similar functionality for Client’s use; or
(c) terminate this Agreement immediately on written notice and promptly refund to Client all Charges paid by Client in respect of the infringing Deliverable.

7.9 DNA will not be liable under clauses 7.6 or 7.8 if the Third Party Intellectual Property Claim, or infringement of third party’s Intellectual Property Rights, arises from:

(a) modification by Client of any of the Deliverables, unless DNA has given its express prior written consent to such modification;
(b) use of the Deliverable in a manner not contemplated in the relevant Order;
(c) the combination of the Deliverable with another good or service where the claim or infringement would not have occurred but for such combination; or

continued use by Client of the Deliverable after having received notice from DNA or otherwise of the possibility that the Deliverable may infringe a third party’s Intellectual Property Rights.

7.1 Subject to clauses 7.2 and 7.3, Client agrees that ownership of all Intellectual Property Rights newly arising out of the provision of the Services will vest in Client at the time Client pays all of the Charges for the Services as detailed in each DNA invoice.

7.2 DNA and Client agree that each party retains ownership of its Pre-existing Intellectual Property Rights.

7.3 Client acknowledges that, following the provision of any Open Source licence terms from DNA and subsequent approval from the Client:

(a) DNA may incorporate into any Services or Deliverables open-source software libraries, software or technology systems that have been licenced under an open- source licence (Open Source IP);
(b) such Open Source IP will be licensed to Client on the terms of the relevant open- source licence; and
(c) DNA can submit improvements or other elements of the Open Source IP (e.g. bug patches) to the relevant open source project.

7.4 To the extent that the Services incorporate any third party Intellectual Property Rights that is not Open Source IP, DNA will ensure that it has all required rights to use those Intellectual Property Rights and, if necessary, to allow Client to use those Intellectual Property Rights solely as necessary in order to obtain the benefit of the Services.

7.5 DNA will notify Client of any infringement of Intellectual Property Rights, other than any infringement of DNA’s Pre-existing Intellectual Property Rights, of which it becomes aware.

7.6 DNA will indemnify and keep indemnified Client in respect of any liability, damages, claims, costs and expenses arising out of a claim by a third party that the use by Client of any Deliverable prepared or submitted by DNA in connection with the Services is in breach of that third party’s Intellectual Property Rights (a Third Party Intellectual Property Claim) and Client will cooperate with DNA’s directions in respect of such infringement.

7.7 The procedure for handling a Third Party Intellectual Property Claim will be as follows:

(a) Client will promptly notify DNA in writing of any Third Party Intellectual Property Claim;
(b) Client will allow DNA to conduct and/or settle all negotiations and litigation resulting from the Third Party Intellectual Property Claim; and
(c) Client will provide DNA will all assistance requested by DNA in respect to the handling of the Third Party Intellectual Property Claim, such assistance to be provided at DNA’s expense.

7.8 If Client is unable to use any Deliverables because they infringe a third party’s Intellectual Property Rights, then DNA will, at its own discretion:

(a) modify the Deliverables so that they are not infringing;
(b) obtain alternative deliverables of substantially similar functionality for Client’s use; or
(c) terminate this Agreement immediately on written notice and promptly refund to Client all Charges paid by Client in respect of the infringing Deliverable.

7.9 DNA will not be liable under clauses 7.6 or 7.8 if the Third Party Intellectual Property Claim, or infringement of third party’s Intellectual Property Rights, arises from:

(a) modification by Client of any of the Deliverables, unless DNA has given its express prior written consent to such modification;
(b) use of the Deliverable in a manner not contemplated in the relevant Order;
(c) the combination of the Deliverable with another good or service where the claim or infringement would not have occurred but for such combination; or

continued use by Client of the Deliverable after having received notice from DNA or otherwise of the possibility that the Deliverable may infringe a third party’s Intellectual Property Rights.

Non-exclusive.

8.1 Nothing in this Agreement prevents DNA from providing Services to other entities within any industry or country.

8.1 Nothing in this Agreement prevents DNA from providing Services to other entities within any industry or country.

Change management procedure. 

9.1 A party may, at any time, request changes to this Agreement by giving the other party a written proposal to that effect (Agreement Change Proposal). Each Agreement Change Proposal must be individually sequentially numbered and state:

(a) the party requesting the change;
(b) a complete description of the proposed change;
(c) the reason for issuing the Agreement Change Proposal;
(d) any required date by which the proposed change must be made; and
(e) if DNA is issuing the Agreement Change Proposal, any price impact of the proposed change.

9.2 The party receiving an Agreement Change Proposal must promptly give the requesting party notice that it:

(a) accepts the Agreement Change Proposal;
(b) wishes to negotiate the Agreement Change Proposal (including, where Client has submitted the Agreement Change Proposal, DNA proving Customer with the price impact of the Agreement Change Proposal); or
(c) rejects the Agreement Change Proposal.

9.3 If the party receiving an Agreement Change Proposal agrees to it, Client’s and DNA 's authorised representatives must sign and date the Agreement Change Proposal. The signed documents vary and form part of this Agreement.

9.4 If the party receiving an Agreement Change Proposal rejects it, this Agreement continues unchanged and, if necessary, the parties must follow the dispute resolution procedure set out in clause 13.

9.5 If the party receiving an Agreement Change Proposal gives notice under clause 9.2(b) that it wishes to negotiate the Agreement Change Proposal, the parties will enter into negotiations. If, within 5 Working Days of the receiving party’s notice, the parties have not agreed on the proposed change, this Agreement will continue unchanged and, if necessary, the parties must follow the dispute resolution procedure set out in clause 13.

9.6 Each party must pay its own costs of complying with this Change Management Procedure.

9.1 A party may, at any time, request changes to this Agreement by giving the other party a written proposal to that effect (Agreement Change Proposal). Each Agreement Change Proposal must be individually sequentially numbered and state:

(a) the party requesting the change;
(b) a complete description of the proposed change;
(c) the reason for issuing the Agreement Change Proposal;
(d) any required date by which the proposed change must be made; and
(e) if DNA is issuing the Agreement Change Proposal, any price impact of the proposed change.

9.2 The party receiving an Agreement Change Proposal must promptly give the requesting party notice that it:

(a) accepts the Agreement Change Proposal;
(b) wishes to negotiate the Agreement Change Proposal (including, where Client has submitted the Agreement Change Proposal, DNA proving Customer with the price impact of the Agreement Change Proposal); or
(c) rejects the Agreement Change Proposal.

9.3 If the party receiving an Agreement Change Proposal agrees to it, Client’s and DNA 's authorised representatives must sign and date the Agreement Change Proposal. The signed documents vary and form part of this Agreement.

9.4 If the party receiving an Agreement Change Proposal rejects it, this Agreement continues unchanged and, if necessary, the parties must follow the dispute resolution procedure set out in clause 13.

9.5 If the party receiving an Agreement Change Proposal gives notice under clause 9.2(b) that it wishes to negotiate the Agreement Change Proposal, the parties will enter into negotiations. If, within 5 Working Days of the receiving party’s notice, the parties have not agreed on the proposed change, this Agreement will continue unchanged and, if necessary, the parties must follow the dispute resolution procedure set out in clause 13.

9.6 Each party must pay its own costs of complying with this Change Management Procedure.

Charges and payments.

10.1 Client will pay DNA all of the Charges set out in an Order.

10.2 Client must pay DNA by the 20th of the month in which Client receives a valid invoice, unless the 20th of the month is less than twelve days from the date upon which DNA provided Client with the invoice, in which case that invoice will be payable by the 20th of the month following Client’s receipt of that invoice.

10.3 If Client does not pay any undisputed invoice by its due date DNA will give Client notice of such non-payment and if Client fails to rectify such non-payment within 14 days of receipt of such notice, DNA may, at its discretion and without prejudice to its other rights and remedies:

(a) charge interest on the overdue payment, calculated and compounded daily from the due date of that amount to the date upon which it is actually paid to DNA, at a rate of [2%] per annum above the then-current Bank of New Zealand commercial base lending rate; and/or
(b) withhold further services or materials associated with the project while there are outstanding amounts.

10.4 If Client disputes any amount claimed by DNA in an invoice then:

(a) Client must advise DNA in writing of the nature of the dispute within five working days of receipt of the invoice; and
(b) pending resolution of the dispute, Client does not have to pay the amount in dispute, but must pay the undisputed portion of the invoice; and
(c) if on resolution of the dispute the amount in dispute is found to have been rendered validly, Client must pay DNA immediately. If the amount is found to have been rendered invalidly, DNA must immediately credit the invoice and provide a replacement invoice if necessary.

10.5 Client will pay DNA, as part of the Charges:

(a) the cost of any expenses set out in an Order as a pass-through expense plus a 20% handling fee; and
(b) all fair and reasonable disbursements in relation to any Order as a pass-through expense with no mark-up, subject to Client providing DNA with its prior approval to incur such disbursement (such approval not to be unreasonably withheld).

10.6 All Projects will be estimated as agreed and will reflect the materials and disbursements estimated to complete the Project.

10.1 Client will pay DNA all of the Charges set out in an Order.

10.2 Client must pay DNA by the 20th of the month in which Client receives a valid invoice, unless the 20th of the month is less than twelve days from the date upon which DNA provided Client with the invoice, in which case that invoice will be payable by the 20th of the month following Client’s receipt of that invoice.

10.3 If Client does not pay any undisputed invoice by its due date DNA will give Client notice of such non-payment and if Client fails to rectify such non-payment within 14 days of receipt of such notice, DNA may, at its discretion and without prejudice to its other rights and remedies:

(a) charge interest on the overdue payment, calculated and compounded daily from the due date of that amount to the date upon which it is actually paid to DNA, at a rate of [2%] per annum above the then-current Bank of New Zealand commercial base lending rate; and/or
(b) withhold further services or materials associated with the project while there are outstanding amounts.

10.4 If Client disputes any amount claimed by DNA in an invoice then:

(a) Client must advise DNA in writing of the nature of the dispute within five working days of receipt of the invoice; and
(b) pending resolution of the dispute, Client does not have to pay the amount in dispute, but must pay the undisputed portion of the invoice; and
(c) if on resolution of the dispute the amount in dispute is found to have been rendered validly, Client must pay DNA immediately. If the amount is found to have been rendered invalidly, DNA must immediately credit the invoice and provide a replacement invoice if necessary.

10.5 Client will pay DNA, as part of the Charges:

(a) the cost of any expenses set out in an Order as a pass-through expense plus a 20% handling fee; and
(b) all fair and reasonable disbursements in relation to any Order as a pass-through expense with no mark-up, subject to Client providing DNA with its prior approval to incur such disbursement (such approval not to be unreasonably withheld).

10.6 All Projects will be estimated as agreed and will reflect the materials and disbursements estimated to complete the Project.

Term and termination.

11.1 This Agreement commences on the Commencement Date, and continues until:

(a) it is terminated in accordance with the provisions of this clause 11;
(b) either party gives to the other not less than sixty (60) days written notice that it wishes to terminate this Agreement;
(c) the End Date, unless the parties agree no later than 20 Working Days prior to the end date to extend the term of this Agreement for an agreed period of time (the Extension Date); or
(d) the Extension Date, if any,
whichever is later.

11.2 Either party may give notice terminating this Agreement with immediate effect if:

(a) the other party commits a material breach of this Agreement and the breach, if capable of remedy, remains remedied twenty working days after the first party has given notice to the other party specifying the breach and requiring it to be remedied; or
(b) the other party either goes into liquidation (other than voluntarily for reconstruction or amalgamation purposes with the prior written approval of the first party, such approval not to be unreasonably withheld), or is dissolved, or enters into a scheme of arrangement with any class of its creditors.

11.3 On termination of this Agreement:

(a) for any reason, DNA will deliver Client at Client’s request all Client’s Confidential Information and Client specific documents and material held or used by DNA in the provision of the Services which have been paid for, provided that DNA will keep a copy of any of Client’s Confidential Information to the extent that it is required to by law; and
(b) as a result of a termination by Client, then Client will pay DNA:

(i) all Charges accrued as a result of time expended by DNA and/or its subcontractors in relation to Services provided under any Order that is in effect as at the date of such termination; and
(ii) a payment to cover all Stranded Costs,
to the extent that these amounts have not already been paid by Client and provided that the total Charges payable to DNA under this paragraph will not exceed the total Charges that otherwise would have been payable by Client for the terminated Services if the Order had not been terminated.

11.1 This Agreement commences on the Commencement Date, and continues until:

(a) it is terminated in accordance with the provisions of this clause 11;
(b) either party gives to the other not less than sixty (60) days written notice that it wishes to terminate this Agreement;
(c) the End Date, unless the parties agree no later than 20 Working Days prior to the end date to extend the term of this Agreement for an agreed period of time (the Extension Date); or
(d) the Extension Date, if any,
whichever is later.

11.2 Either party may give notice terminating this Agreement with immediate effect if:

(a) the other party commits a material breach of this Agreement and the breach, if capable of remedy, remains remedied twenty working days after the first party has given notice to the other party specifying the breach and requiring it to be remedied; or
(b) the other party either goes into liquidation (other than voluntarily for reconstruction or amalgamation purposes with the prior written approval of the first party, such approval not to be unreasonably withheld), or is dissolved, or enters into a scheme of arrangement with any class of its creditors.

11.3 On termination of this Agreement:

(a) for any reason, DNA will deliver Client at Client’s request all Client’s Confidential Information and Client specific documents and material held or used by DNA in the provision of the Services which have been paid for, provided that DNA will keep a copy of any of Client’s Confidential Information to the extent that it is required to by law; and
(b) as a result of a termination by Client, then Client will pay DNA:

(i) all Charges accrued as a result of time expended by DNA and/or its subcontractors in relation to Services provided under any Order that is in effect as at the date of such termination; and
(ii) a payment to cover all Stranded Costs,
to the extent that these amounts have not already been paid by Client and provided that the total Charges payable to DNA under this paragraph will not exceed the total Charges that otherwise would have been payable by Client for the terminated Services if the Order had not been terminated.

General.

12.1 Termination of this Agreement does not operate so as to affect any provision of this Agreement which is intended to continue after termination. In particular, and without limitation, the provisions of clauses 5, 6, 7, 10, 11, 12 and 14 are intended to survive termination of this Agreement.

12.2 If any provision of this Agreement is held to be invalid or unenforceable, the validity of the remaining provisions shall not in any way be affected or impaired and shall remain in full force and effect.

12.3 No failure or delay to exercise a right under this Agreement prevents the exercise of that or any other right on that or any other occasion.

12.4 Any variation of this Agreement must be in writing and signed by both parties.

12.5 Notices under this Agreement must be in writing, and may be delivered by hand, by registered mail or email to the address of the parties set out on the front page of this Agreement. Notice will be deemed given:

(a) in the case of hand delivery or registered mail, upon written acknowledgement of receipt by an officer or other duly authorised employee or representative of the receiving party;
(b) in the case of email, at the time of sending (provided that a valid email address has been used and no delivery failure notice has been received by the sender within four hours of sending the email).

12.6 Neither party has any liability to the other for any lack of performance or failure to comply with this Agreement where the same arises from any cause reasonably beyond the control of either party.

12.7 Either party may assign, transfer, licence or subcontract any of its rights or obligations under this Agreement with the other parties prior written consent, such consent not to be unreasonably withheld or delayed.

12.8 This Agreement constitutes the entire agreement and understanding between the parties in relation to its subject matter and no earlier representation, warranty or agreement in relation to any matter dealt with in this Agreement has any force from the Commencement Date of this Agreement.

12.9 A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.

12.10 This Agreement may be executed in counterparts. All executed counterparts constitute one document.

12.11 A provision or part of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions or parts of the provisions of this Agreement continue in force.

12.12 A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

12.13 Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

12.1 Termination of this Agreement does not operate so as to affect any provision of this Agreement which is intended to continue after termination. In particular, and without limitation, the provisions of clauses 5, 6, 7, 10, 11, 12 and 14 are intended to survive termination of this Agreement.

12.2 If any provision of this Agreement is held to be invalid or unenforceable, the validity of the remaining provisions shall not in any way be affected or impaired and shall remain in full force and effect.

12.3 No failure or delay to exercise a right under this Agreement prevents the exercise of that or any other right on that or any other occasion.

12.4 Any variation of this Agreement must be in writing and signed by both parties.

12.5 Notices under this Agreement must be in writing, and may be delivered by hand, by registered mail or email to the address of the parties set out on the front page of this Agreement. Notice will be deemed given:

(a) in the case of hand delivery or registered mail, upon written acknowledgement of receipt by an officer or other duly authorised employee or representative of the receiving party;
(b) in the case of email, at the time of sending (provided that a valid email address has been used and no delivery failure notice has been received by the sender within four hours of sending the email).

12.6 Neither party has any liability to the other for any lack of performance or failure to comply with this Agreement where the same arises from any cause reasonably beyond the control of either party.

12.7 Either party may assign, transfer, licence or subcontract any of its rights or obligations under this Agreement with the other parties prior written consent, such consent not to be unreasonably withheld or delayed.

12.8 This Agreement constitutes the entire agreement and understanding between the parties in relation to its subject matter and no earlier representation, warranty or agreement in relation to any matter dealt with in this Agreement has any force from the Commencement Date of this Agreement.

12.9 A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.

12.10 This Agreement may be executed in counterparts. All executed counterparts constitute one document.

12.11 A provision or part of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions or parts of the provisions of this Agreement continue in force.

12.12 A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

12.13 Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

Disputes resolution.

13.1 Except where a party seeks urgent interlocutory relief, a party must not start court or arbitration proceedings unless it has complied with this clause 13.

13.2 Where a party has a dispute in relation to this Agreement, it shall issue the other party with a notice setting out the details of the dispute and requiring it to be resolved (Dispute Notice). The intention of the parties is to use all reasonable endeavours to settle any dispute that arises in relation to this Agreement by cordial discussions in good faith between them.

13.3 If any dispute arising between the parties cannot be settled pursuant to clause 13.2 within 20 Working Days of the Dispute Notice, then before pursuing any other remedies, either party must refer the dispute to mediation in which case:

(a) it will be mediated by a single mediator appointed by agreement between the parties, or, failing agreement, by the chairperson or other office holder for the time being of the New Zealand chapter of LEADR; and
(b) the appointed mediator will set the guidelines for the mediation.

13.4 If the parties have not resolved the dispute within 20 Working Days of commencing mediation, each party may pursue all other remediate that are available to it.

13.5 Nothing in this clause 13 prevents any party seeking urgent interlocutory relief.

13.1 Except where a party seeks urgent interlocutory relief, a party must not start court or arbitration proceedings unless it has complied with this clause 13.

13.2 Where a party has a dispute in relation to this Agreement, it shall issue the other party with a notice setting out the details of the dispute and requiring it to be resolved (Dispute Notice). The intention of the parties is to use all reasonable endeavours to settle any dispute that arises in relation to this Agreement by cordial discussions in good faith between them.

13.3 If any dispute arising between the parties cannot be settled pursuant to clause 13.2 within 20 Working Days of the Dispute Notice, then before pursuing any other remedies, either party must refer the dispute to mediation in which case:

(a) it will be mediated by a single mediator appointed by agreement between the parties, or, failing agreement, by the chairperson or other office holder for the time being of the New Zealand chapter of LEADR; and
(b) the appointed mediator will set the guidelines for the mediation.

13.4 If the parties have not resolved the dispute within 20 Working Days of commencing mediation, each party may pursue all other remediate that are available to it.

13.5 Nothing in this clause 13 prevents any party seeking urgent interlocutory relief.

Governing law.

14.1 This Agreement is to be governed by and construed in accordance with New Zealand law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.

14.1 This Agreement is to be governed by and construed in accordance with New Zealand law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.