1. Services
Zest Media will perform the agreed services diligently and competently; provide resource who are appropriately skilled and competent; keep accurate records of the services provided; and report to the client as agreed.
2. Payments
Please note all prices exclude GST. Payment Terms and Variations: An initial 50% deposit is required to start the project (deposit will be deducted off the final project invoice). Invoices are generated as each phase is completed or at the end of each month for hours to date (whichever is earliest). Payment terms are 14 days following invoice generation. Monthly services are due by the 1st of each month in advance by automatic payment. If the project is stopped or put on hold at any point for longer than one week or cancelled by the customer (ie. Not Zest Media) an invoice will be generated for hours completed to date – payment terms 14 days following. If any extra enhancements, requirements, or hours are required the change management process will be followed and customers will be provided with estimates for the additional services. Additional costs outside of the project will be invoiced separately.
If a monthly payment plan has been agreed then all invoices would be generated at time of approval and signing of this document. If any monthly payments are not received as per the schedule, all work would stop and Zest Media would pass the matter on to our collections department. Non-payment of monthly payment plans can also affect any email and web hosting services provided to the client until full payment has been made as per the schedule.
3. Termination
The client may terminate this agreement immediately by written notice to Zest Media for gross negligence or wilful misconduct by Zest Media in the performance of the services.
Either party may terminate this agreement immediately by written notice if the other party goes into liquidation or receivership or makes an arrangement for the benefit of its creditors or becomes insolvent or subject to statutory management.
Either party may terminate this agreement at its convenience by giving at least one month’s written notice to the other party, unless the terms of reference for an individual engagement specifically provide otherwise.
4. Confidentiality
Both parties agree that, unless with the prior written consent of the other or unless required by law, they will not use or disclose to any third party (other than for the purpose of performing this agreement) any information confidential to the other party. The provisions of this clause shall survive termination or expiry of this agreement.
However, Zest Media may disclose in confidence to other clients/potential clients, details of the work performed under this agreement in order to demonstrate Zest Media’s technical experience in this field of work. This disclosure will include only such details as Zest Media reasonably considers necessary for this purpose and will not include any confidential client data.
5. Privacy Act indemnity
Notwithstanding any other provision of this agreement, the Client shall retain sole responsibility for protecting the privacy of its data. Zest Media will not be held liable in respect of any complaint that, in connection with the provision of the services, an interference with the privacy of any individual has occurred (under the Privacy Act 1993), unless that interference arose from a grossly negligent or intentional act or omission by Zest Media, its agents and/or personnel.
6. Solicitation of Staff
Without the prior written permission of the other, neither party shall solicit for employment (directly or indirectly), engage or contract any party who is employed or contracted by the other party or who has been so employed or contracted within the past three months.
7. Intellectual Property Rights
The client acknowledges that, to the maximum extent permitted by law, the client will be the sole owner of, and own the intellectual property rights in, all software, documentation and other materials that Zest Media prepares and provides for/to the client under this agreement. The client will have a non-exclusive, non-transferable perpetual licence to use such materials in-house in its business.
8. Limitation of Liability
The client acknowledges that Zest Media’s performance of this agreement requires it to make judgements which may be affected by factors, which cannot be precisely assessed, and that it must make value judgements relying on information which the client and other organisations supply to it. Therefore, it is agreed that neither Zest Media nor any of its agents or personnel will be liable (whether in tort (including negligence), contract, equity or otherwise) for any loss or damage whatsoever to the client or any other person, arising from Zest Media’s provision of services and materials, other than as a direct result of any gross negligence, bad faith or wilful default by Zest Media or any of its agents or personnel, in which case Zest Media’s liability shall be limited (subject as set out below) to the direct and foreseeable consequences of such negligence, bad faith or wilful default and shall not extend to any indirect or consequential losses, or loss of profits or anticipated savings.
Zest Media’s total aggregate liability in respect of all claims, whether in contract, tort (including negligence), equity or otherwise, under or in respect of this agreement and/or the services or materials supplied by Zest Media, shall not exceed the amount of the charges payable under this agreement for the three most recent months, prior to the event giving rise to such liability, during which services were provided.
9. Force Majeure
Neither party will be liable for any act, omission, or failure to fulfil its obligations (other than to pay money) under this agreement arising from any cause reasonably beyond its control, including acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental action after the date of this agreement, fire, communication line failures, power failures, earthquakes or other disasters (called “Force Majeure”).
The party unable to perform due to Force Majeure will immediately:
notify the other in writing of the reasons for its failure to fulfil its obligations and the effect of such failure;
use all reasonable endeavours to avoid or remove the cause and perform its obligations, and will promptly perform its obligations upon abatement of the Force Majeure.
10. Disputes
The parties shall use their best endeavours to resolve any dispute arising out of or in connection with this agreement between themselves. Failing such resolution, they will try to settle the dispute by mediation. Either party may initiate mediation (in terms of the LEADR New Zealand Incorporated standard mediation agreement) by giving written notice to the other party. If the parties cannot agree on a mediator within seven days after such initiation, then the mediator shall be appointed by the then President of the New Zealand Law Society. If the dispute is not resolved within 20 days after the mediator is appointed, then the parties shall (unless otherwise agreed in writing) refer the dispute to arbitration under the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule).
The parties shall continue to perform their obligations under this agreement as if no dispute had arisen pending settlement of any such dispute.
11. Miscellaneous
This agreement shall be governed by the laws of New Zealand. Neither party may assign this agreement without the other’s prior written consent. This agreement may only be varied by written agreement. These terms of business, and any terms of reference or other document signed by the parties relating to any engagement under these terms, shall constitute the entire agreement of the parties with respect to the subject matter of the relevant engagement. All warranties and representations not set out in those documents, whether express, implied, statutory or otherwise, are excluded from this agreement, to the fullest extent allowed by law.
The client shall ensure that it complies with the Health and Safety in Employment Act 1992 (and any Regulations and codes of practice made pursuant to that Act) to ensure that a safe working environment exists for Zest Media’s consultants carrying out services at the client’s premises.
