Terms of Trade
These terms of trade shall apply to and be read in conjunction with each Works Order and all contractual arrangements between For You Studio Limited (“4U”) and a Client for the supply of services and other items detailed in a Works Order.
1. Definitions
The following terms shall have the following meanings:
“Agreement” means the agreement reached between the Client and 4U, in respect of the Services, which shall comprise the combination of the relevant Work Order and the Terms.
“Background IPR” means, by reference to a Client or 4u (as applicable), all Intellectual Property Rights, excluding Foreground IPR, (a) owned by the Client or 4u (as applicable), or (b) licensed or made available by a third party to Client or 4u (as applicable) and under which the Client or 4u (as applicable) is authorised to grant licenses.
“Client” means the person body or organisation referred to as the Client in a Work Order.
“Foreground IPR” means all Intellectual Property Rights that arise as a result of or in the context of any activity carried out by 4U in performing the Services.
“Intellectual Property Rights” means all unpatented inventions, patents, trademarks, service marks, trade names, domain names, copyrights (including rights in software), moral rights, rights in designs, Know How, database rights and all other intellectual property rights and forms of protection of a similar nature, in each case whether registered or pending registration, and rights to apply for any such rights, howsoever arising and in whatever media.
“Know How” means all knowledge, drawings, specifications, samples, models, instructions, algorithms, working methods, ideas, concepts, technology, applied development engineering data, reports, notes and all other technical or commercial information, data and documents of any kind.
“Services” means the [design and consulting services] and related activities specified in any Work Order and all parts or components of those services.
“Terms” means these definitions and the provisions set out below.
“Works Order” means a scope of work outlining the services requested by the Client that is agreed to by the Client and 4U.
2. Terms
a. The Client agrees that it will be bound by these Terms and/or any Agreement upon the earlier of the:
i. Client accepting these Terms in writing; or
ii. Client accepting a Work Order from 4U; or
iii. delivery of any part of the Services.
b. These Terms and/or the terms set out in any Agreement are paramount and shall apply to each Works order notwithstanding any invoice or other document issued in relation to that Works Orders or the related Services (including the Client’s terms of purchase) whether or not that invoice or other document is later in time unless 4U expressly agrees otherwise in writing (which agreement will not arise simply through performance of any Services).
3. 4U Obligations
a. Subject to the provisions of the Works Order, 4U agrees to conduct and complete the Services with appropriate care, in a professional and ethical manner and in accordance with any guidelines agreed in the Works Order.
b. 4U shall be entitled to engage subcontractors to assist with performing the Services but shall be responsible for their work. 4U shall not be required to commence performance of the Services before receipt of any agreed materials, data and other information from the Client, as may be set out in the Works Order. In case of a delay in delivery, 4U shall be entitled to postpone the delivery date by the duration of such delay or to such later date as necessitated by 4U's planning capabilities.
4. Change Requests
a. The Client shall be entitled to request a change to the Services by issuing 4U with a written request setting out the proposed changes (“Client Change Request”). After receipt of a Client Change Request, 4U shall inform the Client of the anticipated impact on the agreed time schedule and the estimated extra costs of the Client Change Request (“Change Impact Notice”).
b. 4U may also propose a change to the Services by issuing the Client with a written proposal setting out the proposed changes (“4U Change Request”).
c. After receipt of the Change Impact Report or a 4U Change Request, the Client shall notify 4U as soon as practicable whether it approves the Change Impact Notice or 4U Change Request respectively. Upon the Client’s approval, the Works Order shall be deemed to be amended according to the Change Impact Notice or the 4U Change Request, as the case may be. A Customer Change Request shall not be implemented prior to the Client’s written approval.
5. Payments
a. The compensation for the Services provided in connection with a Works Order shall be that set out in the relevant Works Order. The Client agrees to pay 4U that compensation, without deduction, in accordance with the payment terms set out in the relevant Works Order.
b. The Client shall reimburse 4U for:
i. all reasonable out-of-pocket expenses incurred by 4U in relation to the Services, subject to any limits set out in the relevant Works Order; and
ii. all costs incurred as a result of the Client’s instructions or lack of instructions or the inaccuracy of any materials, data and other information provided by the Client.
c. If any payment has not been made on the due date then, without prejudice to 4U’s other rights, the amounts then due and payable shall be subject to an interest charge of 16% per annum, calculated daily and compounded weekly over the period from the date payment was due until the date of payment in full, without prior notice being required.
d. Unless expressly stated otherwise, all amounts in a Works Order are exclusive of any goods and services or similar taxes.
6. Intellectual Property Rights
a. The rights in respect to Intellectual Property Rights related to the Services, including any Background IPR, Foreground IPR and entitlement to all development data, reports and other technical information relating to the Services shall be owned and licensed as follows:
i. each Party shall retain the ownership of its Background IPR; and
ii. unless expressly stated otherwise in a Works Order, all Foreground IPR shall be owned exclusively by 4U.
b. The Client hereby grants to 4U and 4U accepts a worldwide, non-exclusive, royalty-free license of the Clients Background IPR but solely for the purpose of performing its obligations in connection with the Services.
c. The Client warrants that any Client material and its use in relation to 4U performing any Services shall not infringe the Intellectual Property Rights of any third party. The Client agrees to indemnify 4U against any losses, damages and expenses arising from any such
infringement.
7. Warranties
a. To the extent permitted by law, other than as set out in these Terms or otherwise expressly agreed in writing by 4U and the Client, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute or custom are expressly excluded.
b. It is a condition of the provision of the Services that the Consumer Guarantees Act 1993 (“CGA”) will not apply to any Services (or incidental products) provided for business purposes.
c. Nothing in these Terms is intended to have the effect of contracting out of the provisions of the CGA to the extent not permitted by that Act. Where it is mandatory that the CGA applies, these Terms shall be deemed to be modified to the extent that is necessary to give effect to that intention.
8. Limitation of Liability.
To the extent permitted by law, the maximum liability of 4U to the Client under or in respect to the Services provided under a Works Order shall be limited to the fees paid by the Client to 4U under that Works Order.
b. Neither 4U nor the Client will be liable to the other under or in relation to any Works Order in respect of any any loss of profit, loss of revenue or loss of contract (in each case, whether direct or indirect) or any indirect or consequential indirect, losses.
9. Law and Jurisdiction
a. These Terms and each Agreement shall be governed by the laws of New Zealand and the parties submit to the jurisdiction of the courts in New Zealand.