Terms of Service

In this Agreement, unless the context otherwise requires or is specified otherwise:

Acceptance means the acceptance by Customer that the Deliverables provided by Tomorrow pursuant to a Quote or Statement of Work have passed the Acceptance Tests, and “Accepted” has a corresponding meaning;

Acceptance Criteria has the meaning set out in clause 3.3(a)(i);

Acceptance Tests means the tests that will be carried out in accordance with clause 3, which are to be determined in accordance with clause 3.3;

Agreement means this Terms of Services Agreement;

Business Day means a day other than a Saturday, Sunday or public holiday in Auckland;

Customer Pre-existing IP means any Intellectual Property Rights of Customer which:

a) exist at the date of this Agreement; or

b) are not developed under this Agreement;

Customer Tasks means the tasks that Customer is to carry out, as set out in a Quote, Statement of Work or reasonably specified by Tomorrow;

Deliverable means any deliverable set out in a Quote or Statement of Work which is to be delivered by Tomorrow to Customer;

Error means a defect, malfunction, fault or error in the relevant Deliverable which renders it materially unable to meet the Acceptance Criteria but excludes minor or cosmetic defects which do not prevent Customer’s normal use of that Deliverable;

Fees means the specific amounts set out in the relevant Quote or Statement of Work which are to be payable by Customer to Tomorrow for the provision of the relevant Deliverables and Services;

GST means goods and services tax payable under the Goods and Services Tax Act 1985;

Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;

New IP means any new Intellectual Property Rights in a Deliverable;

Quote means an agreement entered into between the parties substantially in a form supplied by Tomorrow to Customer which sets out in detail the Services or Deliverables to be supplied by Tomorrow to Customer and associated fees and costs in accordance with this Agreement;

Schedule means a schedule supplied with a Quote or Statement of Work;

Services Agreement in respect of the provision of any Deliverables or Services means these terms and conditions together with a Quote or Statement of Work setting out the specific terms which apply to that Deliverables or Services;

Services means the services set out in a Quote or Statement of Work which are to be supplied by Tomorrow to Customer;

Specific Terms means the specific terms and conditions (if any) set out in a Quote or Statement of Work;

Specifications means the specifications (if any) set out in a Quote or Statement of Work which are a description of the quality, functionality and performance required of any Deliverable or Services in that Quote or Statement of Work;

Statement of Work or SOW means an agreement entered into between the parties substantially in a form supplied by Tomorrow to Customer which sets out in detail the Services or Deliverables to be supplied by Tomorrow to Customer and associated fees and costs in accordance with this Agreement;

;

Timetable means the timetable (if any) set out in a Quote or Statement of Work; and

Tomorrow Pre-existing IP means any Intellectual Property Rights of Tomorrow which:

In this Agreement and any Services Agreement, unless the context requires otherwise:

Each Statement of Work or Quote will, once signed by both parties or accepted in writing, together with the terms and conditions in this Agreement form a separate contract being a Services Agreement.  If there is a conflict between the terms of a Statement of Work or Quote and the terms of this Agreement then to the extent of the conflict the terms of the Agreement will prevail unless there is express provision to the contrary in that Statement of Work or Quote.  Where there is any conflict between two Services Agreements then to the extent of the conflict the Services Agreement which is later in time will prevail.

Customer may from time to time request Tomorrow to provide Deliverables and/or Services, and if Tomorrow considers it is able to provide those Deliverables and/or Services, it will draft a Quote or Statement of Work in respect of the provision of those Deliverables and/or Services. The parties will negotiate the terms of that Quote or Statement of Work and if they agree the terms of the Quote or Statement of Work, they will sign it or agree in writing and once signed or agreed in writing, that Quote or Statement of Work, together with this Agreement, will form a separate Services Agreement.

Tomorrow will, in accordance with each Quote or Statement of Work:

In providing the Services and/or Deliverables, Tomorrow may require assistance from Customer and access to Customer’s premises. Customer will:

If Customer fails to comply with clause 2.3:

During the term of this Agreement, the parties will hold progress meetings for the purpose of allowing them to discuss the performance of the Services. These meetings will be held at such times and locations agreed between the parties.

If any of the Deliverables under a Quote or Statement of Work are to undergo acceptance testing, then those Deliverables will be Acceptance Tested in accordance with this clause 3.

On completion of each Deliverable that the parties agree will undergo Acceptance Testing (as set out in the Quote or Statement of Work or otherwise agreed in writing), Tomorrow will notify Customer that the Deliverable is ready for Acceptance Testing.  Customer will, within 10 Business Days of such notification or such other time specified in the Timetable, carry out such Acceptance Tests as Customer believes are reasonably required to establish whether the Deliverable meets the Acceptance Criteria for that Deliverable.

During the Acceptance Tests:

Customer will promptly submit the results of the Acceptance Tests to Tomorrow.  Where Tomorrow is notified that a Deliverable has failed to pass any Acceptance Test, Customer will provide Tomorrow with details of the expected results and the failing results, plus any other relevant information reasonably available that will assist Tomorrow to identify the reason for the failure.

If any Deliverable fails an Acceptance Test, Customer may (having regard to any matters raised by Tomorrow):

Acceptance Tests for a Deliverable will be deemed to be completed:

Any minor defect or deficiency in a Deliverable that does not prevent the Acceptance Tests from being carried out or completed satisfactorily will not be justification for Customer refusing to sign a certificate of Acceptance.  However, Tomorrow will rectify any such minor defect or deficiency as soon as reasonably practicable.

Any dispute which arises as to whether a Deliverable passes an Acceptance Test will be referred for resolution in accordance with clause 11.

Tomorrow will issue invoices to Customer for the Fees, any agreed disbursements, and any other agreed charges under that Services Agreement.

Customer will pay each invoice in the manner and at the times specified in the Statement of Work, Quote or Services Agreement, or if not specified, by the 20th of the month following the month of the invoice.

If Customer disputes any invoice, it will give Tomorrow notice of such dispute but will otherwise pay the undisputed part of the invoice. Any disputed amount will be resolved in accordance with clause 11.

If Customer fails to pay any amount due, Tomorrow may without prejudice to its other rights or remedies under this Agreement:

Unless specifically indicated, all amounts payable under each Services Agreement are to be paid in New Zealand dollars.

All fees and any other amounts payable under each Services Agreement do not include GST or any other taxes, duties or charges levied in New Zealand or overseas in connection with the Services Agreement.

Subject to clause 5.2, Tomorrow acknowledges and agrees that all Intellectual Property Rights in the Deliverables (excluding the Tomorrow Pre-existing IP) (New IP), will vest absolutely in Customer on payment in full by Customer of all invoices issued relating to the provision of those Deliverables (and related Services).

Tomorrow may include Tomorrow Pre-existing IP in the Deliverables. Customer acknowledges that:

Customer may provide the Customer Pre-existing IP to Tomorrow for the purpose of providing the Deliverables and/or Services.

For the purposes of this clause, Customer grants Tomorrow a non-exclusive, royalty free right to use, copy and modify the Customer Pre-existing IP to perform Tomorrow’s obligations under this Agreement.

Tomorrow acknowledges that:

Customer warrants that any materials or content provided by Customer to Tomorrow, or that is provided to Tomorrow on Customer’s behalf, will not breach any rights (including Intellectual Property Rights or moral rights as that term is defined in any copyright laws) of any third party or compromise the security or operation of Tomorrow’s computer systems, through a virus or otherwise.

Customer acknowledges and agrees that Tomorrow may use for any purpose any of the Deliverables which by themselves provide generic technical information not unique to Customer’s business. Tomorrow may also use for any purpose any Residuals resulting from the provision of the Deliverables under this Agreement. For the purposes of this Agreement, “Residuals” means any technical information related to computer software technology or design which may be retained by persons involved in the performance of this Agreement in non-tangible form, including know-how, ideas, concepts and techniques.

Customer acknowledges and agrees that Tomorrow may use any of the Deliverables for Tomorrow’s own promotional purposes and will attribute the Deliverables to being an outcome of the Services delivered to Customer.

This clause 5 will survive termination of this Agreement.

Each party will treat as confidential all information obtained from the other pursuant to this Agreement, any draft Quote or Statement of Work being prepared or negotiated by the parties or any Services Agreement.  Neither party will divulge such information to any persons (except to their employees (for whom that party will be responsible) and then only to those employees who need to know) without the other party’s prior written consent.

In relation to either party, confidential information means any information relating to the business or affairs of that party and includes, without limitation, its designs, drawings, manufacturing know how, object code, source code, planned modifications to hardware or software, planned enhancements to hardware or software, product knowledge, quality standards, research and development, unpublished specifications, technical information, pricing, manipulated data, business plans, business processes, methodologies, techniques, general know-how, costs and margins, customer lists, financial data, internal price information, market research, marketing plans, sales forecasts and trade secrets.

Clauses 6.1 and 6.2 do not extend to information which:

If the recipient of any confidential information is required by any applicable law, court or authority to disclose such confidential information to any person, it will:

Each party will on demand and, in any event, on termination of this Agreement, deliver to the other party all confidential information and any other document supplied by or obtained from the other party.

This clause 6 will survive termination of this Agreement.

The term of this Agreement will commence on the date the signature page is executed on the Quote or Statement of Works by both parties and continues until terminated in accordance with the provisions of this Agreement.

The term of any Services Agreement will commence on the Commencement Date (as defined in that Services Agreement) and will either expire or terminate in accordance with the terms of that Services Agreement.

Either party may terminate this Agreement or any Services Agreement for convenience by giving not less than 90 days’ notice in writing to the other party.

Either party may terminate this Agreement or any Services Agreement if the other party:

If any Services Agreement is terminated:

Termination of:

Termination of any Services Agreement or this Agreement will not affect the provisions of that Services Agreement or this Agreement which are intended to continue, or should reasonably continue, after termination (whether expressly stated so or not).  Termination will not affect any claim by either party against the other party arising out of any breach or failure under any Services Agreement or this Agreement prior to termination.

Tomorrow warrants to Customer that it will provide the Services in a proper, competent and professional manner.

In carrying out the Services, Tomorrow may engage independent IP attorneys on Customer’s behalf to conduct, for example, trade mark searches, design searches and/or infringement assessments (Third Party IP Services). Tomorrow does not provide any warranties in respect of any Third Party IP Services provided in connection with the Services and Customer agrees and accepts that Tomorrow is not liable (whether in contract or tort) for any faults or defects, acts or omissions in any Third Party IP Services or infringement of the Intellectual Property Rights of any third party arising from use or publication of any of the Deliverables. Further, Tomorrow is not liable for any indirect, special or consequential loss to Customer arising from any faults or defects, acts or omissions in any Third Party Services that have been provided in connection with the Services.

Customer agrees and accepts that ultimately it is Customer’s responsibility to engage any Third Party IP Services or conduct their own enquiries in order to be satisfied Customer can use and publish the Deliverables without risk of infringing any third party Intellectual Property Rights. If Customer relies on any Third party IP Services provided in connection with the Services, Customer agrees and accepts it does so at its sole risk.

This clause sets out Customer’s sole and exclusive remedy in respect of any claim of copyright infringement.

If a claim for a breach of warranty in clause 8.1 is brought against Tomorrow, Tomorrow will, at is election, either:

Customer will indemnify Tomorrow against all costs, expenses and damages incurred through any claims against Tomorrow resulting from:

Neither party will be liable to the other party for loss of profits, loss or revenue, loss of data, or any indirect, consequential or special loss or damage suffered or incurred by that other party arising out of or in connection with this Agreement and/or Services Agreement.

Each party’s liability to the other party arising out of all claims for loss or damage under each Services Agreement will not exceed in aggregate an amount equal to the Fees paid and/or payable by Customer to Tomorrow under that Services Agreement. The parties acknowledge and agree that, except for a breach by a party of clause 6, neither party has liability to the other party under this Agreement and any liability will be under a Services Agreement.

Tomorrow will propose an amendment to the Statement of Work in accordance with the remaining provisions of this clause 9 (a Change Submission).

Either party may request changes to the level, scope or timing of any Services or Deliverables to be supplied pursuant to a Statement of Work (a Change).  Where either:

Where Customer requests a Change, Tomorrow will (unless otherwise agreed) deliver a Change Submission to Customer within 15 Business Days of receiving a written request for a Change from Customer.

Where Tomorrow believes that a Change would be appropriate, Tomorrow will notify Customer of this recommendation and prepare a Change Submission.

Each Change Submission submitted by Tomorrow to Customer will include such information Tomorrow considers appropriate, such as:

For each Change Submission submitted, Customer will evaluate the Change Submission and:

Tomorrow may sub-contract any of its obligations under this Agreement or any Services Agreement without obtaining Customer’s prior written consent.

If Tomorrow uses a sub-contractor in respect of any Services Agreement, Tomorrow is not relieved of any of its liabilities or obligations under that Services Agreement.

If a dispute arises out of or relates to this Agreement (Dispute), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.

A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.

On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.

If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 11.2 (or within such further period agreed in writing by the parties), either party may, by giving written notice to the other party, require the Dispute to be determined by the arbitration of a single arbitrator.  The arbitrator will be appointed by the parties or, failing agreement within 5 Business Days of the notice requiring arbitration, by the President of the New Zealand Law Society on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.

Neither party will be responsible or liable for any delay or failure in the performance of its obligations under this Agreement or any Services Agreement if such delay or failure is due to circumstances outside its reasonable control including, acts of God, natural disaster, riot, terrorism, malicious damage, fire, pandemic or epidemic (each an Event of Force Majeure).  This clause 12.1 does not apply to any obligation to pay money for liabilities incurred prior to any such extraordinary circumstances occurring.

If any Event of Force Majeure continues for a period of 30 days or more, then the unaffected party will be entitled to terminate the affected Services Agreement only by giving the other party notice in writing.  Such termination will be without prejudice to the accrued rights and remedies of either party.

This Agreement together with any Quote or Statements of Work constitutes the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter.

This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.

If any part or a provision of this Agreement or any Services Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement or the Services Agreement (as applicable) will continue to operate.

A provision or a right under this Agreement or any Services Agreement may not be waived except in writing signed by the party granting the waiver.

A party may exercise a right, power or remedy under this Agreement or any Services Agreement at its discretion, and separately or concurrently with another right, power or remedy.  A single or partial exercise of a right, power or remedy by a party under this Agreement or any Services Agreement does not prevent a further exercise of that or of any other right, power or remedy.

This Agreement or any Services Agreement may not be varied except by agreement in writing signed by the parties.

Customer will not assign, transfer or otherwise deal with this Agreement or any Services Agreement or any of its rights or obligations under this Agreement or any Services Agreement, whether in whole or in part, without the prior written consent of Tomorrow.

Notices and other communications under this Agreement or any Services Agreement are to be given in writing by email, personal delivery or by post and must be:

A notice or communication in relation to this Agreement or any Services Agreement will be deemed to be received:(a)in the case of a letter, on the third Business Day after posting;

This Agreement and any Services Agreement(s) will be governed by and construed in accordance with the laws of New Zealand