Except as varied by the Specific Terms in a seperate commercial agreement, the following General Terms and conditions apply to any product or service  provided by CyberGrape to the Client.

1     DEFINITIONS AND INTERPRETATION

1.1  In these terms and conditions the following terms have the following meanings:

WORK ORDER means the Work or Service being undertaken by  CyberGrape for the Client as described in each schedule as attached from time to time.

WORKING DAY means any day other than a Saturday, Sunday, public holiday in Wellington, Auckland or Christchurch, New Zealand, and any day from 24 December to 5 January inclusive in any year.

1.2 In this contract:

• in addition to the definitions in clause 1.1, unless the context otherwise requires:

1. terms given a meaning in the Specific Terms shall have that meaning;
2. terms given a meaning in each schedule shall have that meaning in relation to the Work Order that is the subject of that schedule; and

• terms given a meaning within the General Terms shall have that meaning.
• This contract shall include the schedules as attached from time to time;
• a reference to a person includes any other entity or association recognised by law and the reverse.
• words referring to the singular include the plural and the reverse.
• a reference to a paragraph, section, clause, schedule or a party is a reference to that paragraph, section, clause or party in this contract.
• where two or more persons are listed as a party to this contract, their liability is joint and several.
• all monetary amounts are in New Zealand dollars unless stated otherwise.
• clause headings are for reference purposes only.
• time is of the essence.

 
2      WORK

 2.1   From time to time the Client will request  CyberGrape to perform various services.

• For each requested service, CyberGrape and the Client shall agree the important details of the enagagement in a Statement of Work (SOW) to be attached to and form part of this contract.  Each SOW shall include:

• A description of the Work;
• the Deliverables and due dates for the Deliverables;
• Start Date and End Date;
• Fees; and
• any other matters agreed by the parties in relation to the Work.

• If there is any conflict between the Specific Terms or General Terms and a SOW, the provisions of the SOW shall prevail with respect to the service that is the subject of that SOW.

• CyberGrape will (subject to the Client meeting its obligations under this contract):

• start the Work on the Start Date;
• exercise reasonable care and skill in carrying out the Work, consistent with standards generally accepted in the Information Technology professions in New Zealand; and
• use reasonable endeavours to complete the Work, or any part of the Work, in accordance with the Deliverable dates.
  • The parties acknowledge that the nature of the Work is such that changes in the Work may be necessary and that any such changes may require amendments to the Fees, Deliverables and/or timetable for the Deliverables. The parties will act in good faith to discuss any such changes and amendments requested by a party provided that such changes and amendments will not be binding unless agreed expressly, in writing.

• The Work or each part of the Work will be deemed to have been completed upon delivery of the applicable Deliverables (or where Deliverables are not defined, on delivery by CyberGrape, of a report summarising the Work).
• Neither party will assign or otherwise transfer its rights or obligations under this contract without the prior written consent of the other party (such consent not to be unreasonably withheld).

• RESOURCES TO BE PROVIDED

• The Client will provide CyberGrape with:

• such access to its own facilities and personnel, and such access to other facilities and personnel which it is within its power to facilitate, as CyberGrape reasonably requires for the purposes of carrying out the Work; and
• the Client Contribution at such times and at the required standard (if any) as per the schedule or as reasonably required by CyberGrape to complete the Work or any part of the Work.
  • CyberGrape will not be responsible or liable to the Client or to any person for any delay in performing, or failure to perform, the Work (or any part of the Work)  to the extent that such delay or failure is due to the Client failing to meet its obligations under clause 3.1.

• GOODS AND SERVICES
  • This clause 4 applies if any of the Work comprises the making and/or supplying of goods or services by CyberGrape to the Client.
  • The Client assumes all risk in the goods either (a) once they are delivered to the Client or (b) once the Client has been notified that the goods are ready for collection. If the goods are to be delivered to the Client, the costs of delivery, and insurance of the goods while in transit, will be met by the Client.
  • If the Client fails to take delivery of the goods within 7 Working Days of receiving written notification of their readiness for collection, CyberGrape may charge the Client for any costs incurred in storing the goods.   CyberGrape will be entitled to sell or otherwise dispose of the goods after giving the Client a further 7 Working Days’ notice.  Any surplus upon a sale of goods pursuant to this clause after deducting  CyberGrape’s storage costs and all of its costs incurred in selling the goods will be offset against moneys owing from the Client to  CyberGrape  Any balance will be refunded to the Client.  If the price received by  CyberGrape is insufficient to cover all moneys owing to  CyberGrape by the Client, including storage and selling costs, the Client will immediately pay the shortfall to  
  • Legal and equitable title in any goods supplied by CyberGrape pursuant to this contract will be retained by  CyberGrape until all amounts payable to  CyberGrape under this contract have been paid.  If the goods have not been paid for in full within 20 Working Days of the date on which payment was due  CyberGrape may enter the Client’s premises at any reasonable time and seize the goods. 
  • CyberGrape warrants that clear title to any goods provided to the Client pursuant to this contract will pass to the Client when title passes pursuant to clause 4.4. To the extent allowed by law every other warranty or guarantee implied by custom or law in relation to the goods or Work provided by  CyberGrape under this contract is excluded including, without limitation, any warranty that the goods or Work provided are fit for their intended purpose.  The Client agrees that the Work and goods (if any) provided by  CyberGrape are supplied for business purposes.
• PAYMENT
  • CyberGrape shall invoice in arrears on a monthly basis (in equal instalments if the price is fixed) for Fees (plus GST, if any) and Expenses (plus GST, if any).
  • The Client will pay Fees (plus GST, if any) and Expenses (plus GST, if any) specified on an invoice by the 20th day of the month following the date of invoice. On termination of this contract all outstanding amounts will be payable immediately.   CyberGrape may set-off any amount payable by it to the Client against any amount payable by the Client to  CyberGrape under the terms of this contract.  CyberGrape has the right to require payment by letter of credit or such other method of payment acceptable to  
  • Interest will be payable on overdue amounts at a rate equal to 3 percent above the base lending rate of the National Bank of New Zealand from time to time from the due date until the date payment is received. Such interest will accrue on a daily basis.
  • Without limiting any of CyberGrape’s other rights and remedies under this contract, if any payment under this contract is not made on the due date  CyberGrape may suspend the Work or suspend the supply of Deliverables upon any Work Order (whether the overdue payment relates to that Work Order or not) until such overdue payment and any interest due on it is received.

6        LIABILITY

• Neither party will be liable to the other party (under the law of contract, tort including negligence, equity, under an indemnity or otherwise) for any indirect, special or consequential damages arising out of or in connection with this Agreement, even if that party was advised in advance of the possibility of such damages.
• CyberGrape will not be liable to the Client for any claim made by the Client against CyberGrape where notice of the claim is not made within a period of 12 months commencing on the date of completion of the Work relating to the particular Work Order in question or, if the Work is not completed, on the earlier of the date of termination of that Work Order or this contract.

• Notwithstanding any other provision in this contract, the liability of both parties (under the law of contract, tort including negligence, equity, breach of statutory duty or otherwise) for any loss, cost, damage or expense suffered by either party (howsoever arising) will not, in aggregate, exceed the total amount of the Fees (exclusive of GST) paid by the Client to CyberGrape under the Work Order from which the liability arises, or such other amount specified in the Specific Terms (if any).

• The Client indemnifies CyberGrape, its subsidiaries, officers, employees and subcontractors against any claim, proceeding, loss, cost (including legal costs on a solicitor/own client basis), damage or expense (Loss) incurred by  CyberGrape arising from a breach of this contract by the Client or the Client’s use of any Deliverable or any output of the Work, any product or process developed therefrom or incorporating the same, other than where such Loss arises directly from a breach of this contract by  CyberGrape.

• The limitation of liability set out in clause 6.3 does not apply to the liability of either party that arises in the case of wilful default or fraud; or as a result of that party’s breach of its obligations under the clause 7 (Intellectual Property Rights) or clause 9 (Confidentiality) in this agreement.

• INTELLECTUAL PROPERTY RIGHTS
  • Intellectual Property Rights means all intellectual and industrial property rights of any nature whether conferred by statute, common law or equity, including without limitation, all rights in any patent, copyright, trade mark, design, database, circuit lay-out, know-how, trade secret, Confidential Information, or right of confidence including all such rights or similar rights in any invention, device, material, data, drawing, sample, method, process, text, algorithm, schematic, software, hardware, firmware, get-up, any other original works or materials, or any component of the same, and any application to register the same, whether or not registered or capable of registration.
  • All Intellectual Property Rights existing in a party prior to this contract (Existing Intellectual Property Rights) will remain with that party. Except to the extent necessary to complete the Work or expressly stated otherwise, neither party grants any rights in its Existing Intellectual Property Rights to the other party.
  • Unless otherwise specified in the Specific Terms and/or in a schedule and subject to clause 4, all Intellectual Property Rights arising directly from the Work (Work Intellectual Property Rights) will, upon completion of the Work, vest in the Client, provided that the Client has complied with all of its obligations under this contract.
  • Notwithstanding clause 7.3, where CyberGrape makes any improvement to its Existing Intellectual Property Rights while undertaking the Work and that improvement:
• relates to CyberGrape’s tools of trade, meaning without limitation, any technical information, machine, device, method, process, technique, ingredient, recipe, manufacture, design, specification, composition of matter, formula, algorithm, pattern or programme that  CyberGrape uses in the ordinary course of its business; and
• was incidental to the purpose of the Work, CyberGrape will retain ownership of any Intellectual Property Rights in that improvement provided that CyberGrape grants the Client a non-exclusive royalty free license to use such Intellectual Property Rights to the extent necessary to make use of the Client’s Work Intellectual Property Rights.
  • Client retains the ability to deal and contract directly with Black Kite in the event CyberGrape ceases to trade or CyberGrape ceases to distribute Black Kite cloud platform in the New Zealand market.

• WARRANTIES
  • CyberGrape warrants and represents that:
    • It will perform the Services to meet the Work and in accordance with Good Industry Practice; and
    • Client’s receipt of the Services in accordance with this Agreement will not infringe any Intellectual Property Rights of any third party.
  • Each party warrants and represents that:
  • it has full capacity and is authorised to enter into and perform its obligations under this Agreement;
  • its execution and performance of its obligations under this Agreement will not constitute a breach of any Laws or obligation applicable to it and will not cause or result in a default under any agreement by which it is bound; and
  • there are no actions, suits or proceedings or regulatory investigations before any court or administrative body or arbitration tribunal pending or, to its knowledge, threatened against it that might affect its ability to perform its obligations under this Agreement.

• CONFIDENTIALITY
  • Confidential Information means:
• all information and materials relating to or arising from the Work in any form whatsoever, and
• information which is by its nature confidential or which the discloser advises the recipient is confidential and includes the terms of this contract, and
• includes anything disclosed before the date of this contract that relates to paragraph (a) or (b).
  • Confidential Information does not include:
• information which at the date of this contract is in the public domain or subsequently enters the public domain without fault on the part of the recipient,
• information that is received in good faith by the recipient from a third party,
• information which is at the date of this contract, independently acquired or developed by, or already properly in the possession of, the recipient and which the recipient can demonstrate by written record to be previously known to the recipient.
  • The recipient of Confidential Information shall:
• keep it in the recipient’s possession and treat it as confidential regardless of when disclosed,
• not use any Confidential Information belonging to the other party for any purpose other than as required in terms of this contract,
• only disclose Confidential Information to employees, officers, approved subcontractors or professional advisers on a need to know basis and shall be liable to the discloser for any breach by those persons of these confidentiality obligations.
  • The restrictions in this clause 8 do not apply where disclosure is required by law or by a government agency or government authority.
  • The parties acknowledge that any breach of this confidntiality obligation may result in damages for which monetary compensation would not be an adequate remedy and that the affected party is entitled to specific performance or injunctive relief in addition to any other remedies at law or in equity.
  • No party gives any representation or warranty with respect to any information other than that it has the right to disclose such information.

• DATA PRIVACY OBLIGATIONS
  • In carrying out its obligations under this Agreement, CyberGrape will:
    • make all reasonable efforts to comply with Client’s data security and other security requirements as notified by Client to CyberGrape in writing prior to the Commencement Date; and
    • take such reasonably necessary steps in accordance with Good Industry Practice to:
      (i) not cause damage to Client’s systems; and
      (ii) not cause any interference with the operation of any of Client’s systems except as may be expressly authorised by Client in order for CyberGrape to provide the Services.
  • If CyberGrape becomes aware of, or has reason to suspect the existence of, any incident involving unauthorised access to any of Client’s systems or any Data (whether stored in any Client system, a system of CyberGrape, or elsewhere), in circumstances where the unauthorised access is caused or contributed to by CyberGrape’s Personnel, CyberGrape will:
    • promptly notify Client and, in accordance with a Service Agreement or on a Time and Materials basis, take all steps reasonably available to CyberGrape to identify the individuals involved and to inform Client of their identity; and
    • provide reasonable co-operation to Client in respect of any related investigation by Client, and (if required and permitted by law) avoid any disclosure of the existence or details of the investigation to the individuals involved.
  • CyberGrape will establish and maintain adequate safeguards in accordance with Good Industry Practice against unauthorised access to, and loss, corruption, destruction or alteration of, any Data that is in the possession or control of CyberGrape or its Personnel.

CyberGrape shall ensure that any system on which CyberGrape holds Data, including back-up Data, is a secure system that complies with the Client’s reasonable security requirements as notified by Client to CyberGrape from time to time, and otherwise in accordance with Good Industry Practice.

• PUBLICATION OF RESULTS AND USE OF CYBERGRAPE NAME
  • Where the Client proposes to publish any test results or other information relating to the Work in any academic publication, the Client must make suitable reference to CyberGrape and/or its employees and seek prior written approval from CyberGrape as to the publisher and the contents of the publication, such approval not to be unreasonably withheld.
  • Except with the prior written approval of CyberGrape the Client will not use the name ‘CyberGrape Limited’ or any other similar name or make any other reference to CyberGrape in conjunction with any proposed manufacture or marketing of goods or services.

• TERMINATION
  • Subject to any earlier termination in accordance with the terms of this contract, this contract will commence on the Start Date and terminate on the End Date (if any) set out in the Specific Terms.
  • Subject to any earlier termination in accordance with the terms of this contract, individual Work Orders shall commence on the Start Date and terminate on their End Date (if any) specified in the schedule relating to the Work Order.
  • Without prejudice to any other right or remedy it may have, a party (Terminating Party) may terminate this contract or a Work Order forthwith by written notice to the other party (Defaulting Party) on the commission of a material breach of this contract by the Defaulting Party provided that, if the breach is capable of remedy, notice of termination will not take effect unless the Defaulting Party has failed to remedy such breach to the reasonable satisfaction of the Terminating Party within 15 Working Days following receipt by the Defaulting Party of notice of termination specifying the breach concerned. For the purposes of this clause, a failure to pay any sum of money on the due date will be deemed to be a material breach of this contract.
  • Without prejudice to any other right or remedy it may have, either party may terminate this contract (including all Work Orders) immediately if either party ceases trading and/or commences winding up (otherwise than for the purposes of a solvent reconstruction) or a receiver, or similar is appointed over any of the assets of the Client, or any action is taken to have the Client declared insolvent or bankrupt.
  • The termination of this contract or a Work Order will not relieve the Client of its obligation to make payment to CyberGrape of any Fees and Expenses due to CyberGrape, unless CyberGrape has failed to deliver the agreed scope and requirements of the Work

• DISPUTE RESOLUTION
  • If any dispute arises as to the terms of this contract, then any party may give notice to the other party of that dispute. The parties will endeavour to resolve it quickly and fairly in good faith.
  • If the dispute or difference cannot be settled by good faith negotiation between the parties within five Working Days of the dispute or difference arising, such dispute or difference may be referred by either party to the mediation of a single mediator agreed to by both parties, or failing that, appointed by the President for the time being of the New Zealand Law Society or his/her nominee.
  • If the dispute or difference cannot be settled within 15 Working Days of the dispute or difference being referred to mediation pursuant to clause 11.2, either party may commence court proceedings and shall be entitled to exercise all rights and remedies available to it at law.
  • Nothing in this clause 11 shall prevent either party from commencing court proceedings for the purposes of seeking urgent interlocutory relief.

• GENERAL
  • A failure by a party to enforce a provision of this contract will not constitute a waiver of any right to future enforcement of that or any other provision.
  • If any part of this contract is unenforceable, invalid or illegal, the other terms will remain in force.
  • No party shall be liable for any default in its obligations under this contract if that default arises from any cause reasonably beyond its control including Force Majeure events that materially affects its performance and continues for more than 60 Business Days.

• This clause shall not apply to an obligation to make payment under this contract, unless CyberGrape has failed to deliver the agreed scope and requirements of the Work
• Neither party will assign or otherwise transfer its rights or obligations under this contract without the prior written consent of the other party (such consent not to be unreasonably withheld).
• Nothing in this contract will prevent CyberGrape from undertaking activities in fields the same as or similar to the Work, whether on its own account or on behalf of any third party.
• The Contact Person of each party will have authority to represent it in all matters pertaining to this contract. A party may change its Contact Person by written notice to the other party.
• All clauses of this contract that are intended to continue after termination, including clauses 6 (Liability), 7 (Intellectual Property Rights), 8 (Confidentiality), 9 (Publication of results and use of CyberGrape name), 11 (Dispute Resolution) and 12 (General) will continue in full force and effect
• Any notice to a party under this contract will be deemed to have been delivered three working days after emailing to the Contact person to the email address of that party specified in the Specific Terms of this contract or immediately on receipt by the sender of evidence the notice has been successfully emailed specified in the Specific Terms of this contract.
• This contract records the entire understanding and agreement between the parties regarding its subject matter and supersedes and extinguishes all prior agreements, statements, correspondence and undertakings, whether written, oral or both made between the parties relating to the same subject matter. The parties agree that in entering this contract, they have not relied on any representation (including pre-contractual representations) other than those which are set out in this contract.
• This contract may be signed in counterparts, including by facsimile or email, all of which, when taken together, will constitute one and the same document.
• This contract will be governed by New Zealand law and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand