This agreement contains the entire understanding between Sidebar Ltd ("we", "us", "our") and the party requesting and/or using the services specified in the service agreement ("you", "your") and shall supersede all previous representations, negotiations and commitments whether verbal, in writing or otherwise.
In this agreement, unless the context indicates otherwise:
If there is any conflict between a provision in the service agreement and these general terms and conditions, the service agreement shall prevail.
This agreement will commence on the date specified in the service agreement and will remain in force for the duration of the period specified in the service agreement, subject to earlier termination or expiry in accordance with the provisions of this agreement and renewed in accordance with the provisions of this agreement. Provided that neither party is in default under this agreement, this agreement shall be renewed for a further term at the expiry of each preceding term unless earlier terminated by either party by giving no less than thirty days' notice prior to the expiry of the then-current term.
We shall provide our services using skill, diligence and a standard of care that would reasonably be expected from an experienced provider of similar services in New Zealand. If, at any time during the term, we are unable or are likely to become unable, for whatever reason, to provide any or all of the services, we must immediately notify you of that fact.
You shall grant us a reasonable extension of time to complete the services where completion of any part of the services is delayed by matters beyond our control and/or you have requested additional services. Any additional services shall be charged at our standard rates, unless specified otherwise in the service agreement.
You shall provide and accommodate, at your cost, any request for data and information reasonably made by us necessary for the performance of the services.
The fees and rates payable in respect of this agreement are specified in the service agreement. You shall pay the invoiced amount to us within 15 days of receipt of the invoice unless agreed otherwise by us. Any expenses or other disbursements incurred by us in the course of providing services to you, will be in addition to the fees and rates for the services and invoiced to you with a 20% surcharge on costs incurred by us. You shall, on demand by us, pay interest at a rate of 20% per annum calculated on a daily basis on any overdue amount. You shall be liable for all costs incurred as part of any debt recovery action we may take.
Both parties agree to indemnify the other party and each of its officers, employees and agents against any loss, damage, claim, action or expense (including legal expense) which the indemnified party suffers as a result of any of the following: (a) a breach of this agreement by the indemnifying party; (b) inaccuracy of any materials or information supplied by the indemnifying party; (c) an infringement of any right of any third party (including any intellectual property rights) or any laws by use of any materials or information supplied by the indemnifying party.
We shall not be liable to you for any loss, damage, claim, action or expense suffered by you arising out of or connected with the performance or failure of performance of our services unless written notice is given to us for a claim within three months of the date of such loss or damage suffered by you and the maximum amount of liability for the aggregate for all such claims shall be limited to the amount actually paid to us in the immediately preceding three month period.
Confidential information means all data and information exchanged between parties in connection with this agreement, but excludes information which is: (a) in, or which subsequently enters the public domain other than as a result of a breach of this agreement; (b) known to the recipient on the date of its receipt; (c) received in good faith by the recipient from a third party who has lawful possession of such information and a right to disclose the same; (d) disclosed pursuant to legal requirement or order.
Both parties must use and reproduce confidential information only to perform each party’s obligations under this agreement and neither party shall, without the prior written consent of the other, disclose to any third party or use the confidential information for any other purpose.
All confidential information will remain the property of the party supplying the confidential information (or any part of it) and must be returned to the supplying party on termination or expiry of this agreement.
We acknowledge that we are bound by the information privacy principles set out in The Privacy Act 1993, any applicable code of practice as defined in, and approved under the Privacy Act 1993 and our privacy policy which can be viewed here.
Intellectual property means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application. Project intellectual property means all intellectual property created, developed, discovered, brought into existence or otherwise acquired by the parties, under this agreement.
We will own all project intellectual property. You will give written notice to us prior to the delivery of all or part of the services, if you consider that all or part of the project intellectual property arising from the delivery of the services should be owned by you and if we agree, then the project intellectual property specified in the notice is owned by you.
Nothing in this agreement constitutes a transfer to the other party of any intellectual property rights.
You may terminate this agreement by giving no less than thirty days written notice of termination to us and upon payment of the amount equivalent to the fees payable for the remainder of the then current term and all other amounts payable to us.
We may at our sole discretion terminate this agreement and/or suspend the provision of our services, for any definite or indefinite period of time, by giving written notice of termination to you if: (a) you are in arrears for more than fourteen days after payment has become due, unless you have given written notice within three days of receipt of the invoice that you dispute the invoiced amount; (b) you fail to remedy, to our satisfaction, any breach of this agreement (which in our opinion is able to be remedied) within fourteen days after the date on which we issue you a written notice requiring the breach to be remedied; (c) you breach any material provision of this agreement and in our reasonable opinion such breach cannot be remedied; (d) you commit any act or do anything that is contrary to prevailing community standards which bring your reputation into disrepute and as a consequence we believe that our continued association with you will be prejudicial or otherwise detrimental to our reputation; (e) you enter into liquidation, or a receiver is appointed, or you become subject to any form of insolvency administration or arrangement, or in the case of an individual, become bankrupt or enter into a scheme or arrangement with creditors.
Termination or expiry of this agreement will not prejudice any right of action or remedy which may have accrued to either party prior to the termination or expiry.
Any notice given to you under this agreement will be sent via email to the last known email address on file. If your contact details change, you must notify us as soon as possible. All notices given to us, must be sent via email to team@sidebar.co.nz.
A notice or document is taken to be delivered or served on the business day following the day on which it was sent. Any notice or document delivered or deemed to be delivered after 5pm in the place of receipt or on a day other than a business day is taken as having been delivered at 9am on the next business day.
If any dispute arises between the parties concerning this agreement, the parties agree that: (a) they shall negotiate in good faith with the objective of reaching an acceptable commercial solution to the problem; (b) if such an agreed solution cannot be reached to the satisfaction of both parties within fourteen days of the dispute being notified in writing to the other, the parties shall within a further fourteen days (or within such further period as they may agree is appropriate) refer the dispute to mediation; (c) in the event the parties cannot agree on a mediator, a mediator shall be appointed by the President of the New Zealand Law Society at the request of either party; (d) while any such dispute remains unresolved the parties agree to continue the performance of the agreement to the extent that such performance is possible given the nature of the dispute.
The preceding dispute resolution procedures to not apply to any dispute relation to payment of our charges for services provided to you.
Neither party will be liable for any delay or failure in performance of its obligations under this agreement if the delay or failure is due to any cause outside its reasonable control including force majeure will, act of God and act of Government. The performance of the parties under this agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this agreement. This clause does not apply to any payment obligations.
If any provision of this agreement is invalid or unenforceable it is to be read down, if possible, so as to be valid and enforceable, and, if that is not possible, the provision shall, to the extent that it is capable, be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions.
Each party is responsible for their own legal and other costs and expenses of negotiating, preparing, executing and performing their obligations under this agreement.
Any variation to the terms and conditions of this agreement must be recorded in writing and agreed to by both parties.
We reserve the right to engage other parties to perform work or provide services on our behalf.
We reserve the right to work for or accept retainers from other parties which may compete directly or indirectly with your business.
You warrant that you will not during the term of this agreement and for a period of six months following termination of this agreement, directly or indirectly solicit, canvass or entice any employee away from us.
If we fail to enforce any terms or to exercise our rights under this agreement at any time, we have not waived those rights.
You may not assign or transfer your rights under this agreement without prior written consent from us.
This agreement is governed by and is to be construed in accordance with the laws of New Zealand and to submit to the exclusive jurisdiction of the courts or tribunals of New Zealand for any disputes arising out of or in connection with this agreement.
Last updated on the 15th April 2024.
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