Privacy and Terms of Service

INTRODUCTION

1. These Standard Terms apply wherever a Client appoints Bamboo Creative to provide Services and/or Deliverables under an SLA.
2. In the event of conflict between the SLA and these Standard Terms, these Standard Terms will prevail, except as expressly stated otherwise in the SLA.

SERVICES AND ACCEPTANCE TESTS

1. Bamboo Creative agrees to provide the Services to the Client on the terms and conditions of this Agreement.
2. Bamboo Creative will use reasonable endeavours to provide the Services in accordance with the Timetable.
3. The Client agrees to provide all data, material and decisions in a timely manner that Bamboo Creative requires to provide the Services in accordance with this Agreement.
4. If Bamboo Creative is delivering Software, and the SLA specifies that it will be tested, Bamboo Creative will deliver the Software to the Client for testing to confirm it conforms in all material respects with the Specification (User Acceptance Testing).
5. The Client will complete all User Acceptance Testing in accordance with the SLA within 5 Working Days (or any longer period specified in the SLA) following receipt of the relevant Software build (UAT Period).
6. If User Acceptance Testing demonstrates the Software does not conform in all material respects with the Specification by the end of the UAT Period (Test Failures), the Client will notify Bamboo Creative, outline the failures and provide copies of all test results and records, and Bamboo Creative will correct each failure and resubmit the Software for further testing in accordance with clause 2.4.
7. The Software will be deemed to have passed User Acceptance Testing if the Client does not notify Bamboo Creative of any Test Failures before the end of the UAT Period, if the Client advises Bamboo Creative that the Software has passed User Acceptance Testing, or if the Client commences live use of all or some of the Software.
8. The Client acknowledges that Bamboo Creative’s provision of the Services is dependent on the Client providing all reasonably required cooperation, including the prompt provision of access to the Client’s applications, software systems, personnel, and materials. The Client will provide such cooperation in a diligent and timely manner.
9. Bamboo Creative will, during the Term, use reasonable endeavours to meet or exceed the Objectives listed in the SLA (if any).

FEE AND OTHER PAYMENTS

1. The Client will pay the rates and fees specified in the SLA for the Services and Deliverables together with GST (where applicable), or if none are specified in the SLA, Bamboo Creative’s standard rates will apply (Fees).
2. The Client will pay the Fees to Bamboo Creative at the times and in the manner specified in the SLA. Unless the SLA specifies otherwise, Bamboo Creative may invoice monthly, and each invoice is payable within 20 Working Days of receipt. Bamboo Creative may withhold Services and Deliverables until all amounts due by the Client to Bamboo Creative under this Agreement have been paid in full, and may extend any timeframes for the Services and Deliverables accordingly.
3. If the Client fails to pay any Fees by the due date, Bamboo Creative may charge interest on the unpaid amount from the due date until the date of actual payment at the rate equal to the rate charged by Bamboo Creative’s bank on commercial overdrafts plus a margin of 3% per annum.
4. Subject to the terms of the SLA, The Client will pay Bamboo Creative’s reasonable travelling expenses and accommodation costs if Bamboo Creative visits the Client or travels outside the city in which its offices are located to provide any Services.

CHANGES TO SPECIFICATIONS OR SERVICES

1. If the Client wishes to change or add to the Specifications or the Services (Change), it must notify Bamboo Creative and provide details of the proposed Change, and Bamboo Creative will provide an estimate of any changes to the Fees or the Timetable.
2. If the parties agree in writing on the Change, Bamboo Creative will proceed with the Change and the Specifications, Services, Fees and/or Timetable will be amended accordingly.

INTELLECTUAL PROPERTY

1. Each party retains ownership of its Background IP.
2. Bamboo Creative will be entitled to ownership of all Retained IP. If and to the extent that any Retained IP vests (or has vested) in the Client, the Client assigns to Bamboo Creative all of the Client's rights, title and interest in that Retained IP, and will do all things, including signing all documents, necessary to give effect to this clause 5.2.
3. Except as stated otherwise in the SLA and subject to clause 5.2, the Client will own all Developed IP on and from payment of all Fees in full.
4. Unless the SLA specifies otherwise, Bamboo Creative grants to the Client a perpetual, non-exclusive, non-transferable licence of all Retained IP comprised in, or required for the use of, the Deliverables to the extent necessary for the Client to use those Deliverables.
5. Each Third Party Component incorporated in the Deliverables will be licensed to the Client on the terms of the applicable Third Party Licence, and the Client and any permitted sub-licensees must comply with each Third Party Licence.
6. The work carried out by Bamboo Creative may incorporate open-source software libraries, software and technology systems, which constitute Third Party Components. Bamboo Creative warrants that you will be provided with a licence to reasonably anticipated commercial activities with the technology, on a royalty-free basis. Bamboo Creative will be entitled to submit any bug patches back to any open source project without any restriction. To enable bug patches to be submitted back to the relevant open source project, content of the patches will be licensed under the relevant open-source licence.

CONFIDENTIALITY

1. Each party (Recipient) will keep confidential all Confidential Information obtained from the other party (Discloser) and, except as permitted under clause 6.2 or 6.3, will not disclose that information to any third party, or use that information other than for the purposes of this Agreement, without the written consent of the Discloser.
2. The Recipient may disclose Confidential Information only to those of its employees, agents and contractors who are directly involved in, and only for the purposes of, fulfilling the obligations of each of the parties under this Agreement and will ensure that such employees, agents and contractors are aware of and comply with these obligations as to confidentiality.
3. The obligations of confidentiality set out in clause 6.1 will not apply to Confidential Information that:
   1. the Recipient can clearly show was independently available to it from a third party having the right to disclose it;
   2. at the time of execution of this Agreement is in the public domain, or subsequently enters the public domain, through no fault of the Recipient or any other person to whom it discloses the information; or
   3. the Recipient is obliged by law to disclose, provided that it has first advised the Discloser of this obligation, has allowed the Discloser reasonable time to avoid the disclosure having to be made, and has given the Discloser such assistance (at the Discloser’s cost) as the Discloser reasonably requests in doing this.
4. Subject to first obtaining the Client’s written approval, the Client will give Bamboo Creative permission to create and publish Portfolio Materials publicising the work carried out by Bamboo Creative under this Agreement, which may include the Client’s logo and/or still or moving imagery showing the Deliverables in operation. The Client must not unreasonably withhold, delay, or condition its approval under this clause.

WARRANTY AND LIMITATION OF LIABILITY

1. Bamboo Creative warrants that to the best of its knowledge and belief on the date of this Agreement and on delivery of the Deliverables, the Deliverables do not infringe any patent, copyright, trade secret or other Intellectual Property right of any third party. This warranty does not apply to any Third Party Components incorporated into, or used with, the Deliverables.
2. Bamboo Creative does not warrant that the Deliverables or Services will be continuously uninterrupted or error-free. During the Warranty Period, Bamboo Creative will provide all reasonable programming and remedial services to correct reproducible errors caused by failures in the Deliverables functioning substantially in accordance with the applicable Specifications.
3. However, Bamboo Creative will have no obligation under this clause for defects that are attributable in any way to the Client, to the Third Party Components, or are attributable to any events or circumstances arising:
   (a) after the Deliverables are delivered into the Client’s possession; or
   (b) while the Deliverables are being set up or used for the Client’s purposes. This non-transferable warranty is only valid for the Warranty Period.
4. Bamboo Creative makes no warranties in respect of, and will not be liable in any way for, any failure, breakdown, or inability to access the Third Party Components, nor any claims relating to the Third Party Components.
5. The Client acknowledges its use of Third Party Components will be subject to the terms and conditions, and privacy notices, set by their providers.
6. As far as permitted by law, and except as expressly provided in this Agreement, all representations or warranties (statutory, express or implied) are expressly excluded, including without limitation, the implied warranties of merchantability and fitness for a particular purpose.
7. Bamboo Creative will not be liable for any loss, damage or injury that any third party may suffer in connection with, or as a result of, the operation of any Deliverable, and the Client will indemnify Bamboo Creative for all third party claims in respect of such loss, damage or injury, including all costs and expenses reasonably incurred by Bamboo Creative in relation to any such third party claim. However, this clause 7.7will not apply in relation to loss, damage or injury caused by Bamboo Creative’s gross negligence or wilful default.
8. Notwithstanding anything in this Agreement to the contrary, Bamboo Creative will not be liable under the law of tort (including negligence), contract or otherwise for any loss of profits, any loss or corruption of data, or any indirect or consequential loss or damage arising out of or in connection with this Agreement.
9. Each party’s total aggregate liability to the other party arising out of or in connection with this Agreement (under the law of tort (including negligence), contract or otherwise) will not exceed in aggregate the total annual Fees paid or payable by the Client to Bamboo Creative under this Agreement, or NZ $50,000, whichever is higher. This liability cap in this clause 7.9 will not apply to or take into account
   (a) any liability that cannot be lawfully excluded by contract,
   (b) any liability either party may have for fraud, deceit, breach of confidentiality, or wilful default (including repudiation), and
   (c) any Fees or other amounts which this Agreement requires one party to pay the other.

DEFAULT AND TERMINATION

1. Bamboo Creative may terminate this Agreement immediately by notice in writing to the Client if the Client:
   (a) fails to pay the Fee or any other amount owing under this Agreement when due;
   (b) is in material breach any of its other obligations under this Agreement and (if the breach is capable of remedy) fails to remedy the breach within 20 Working Days after notice from Bamboo Creative specifying the breach and requiring it to be remedied; or
   (c) becomes bankrupt or goes or is put into liquidation or has a receiver or statutory manager appointed of its assets or any of them or becomes insolvent, ceases to carry on its business or makes any composition or
2. In the event of termination pursuant to clause 8.1, no refund of the Fees paid by the Client will be payable by Bamboo Creative, and the Bamboo Creative must deliver to the Client all Deliverables that the Client has fully paid for, and copies of the same in whatever form possessed by Bamboo Creative
3. The Client may terminate this Agreement at any time, on three months’ written notice to Bamboo Creative, notwithstanding that Bamboo Creative may not have completed the Services, provided that the Client pays:
   (a) all unpaid Fee(s) that Bamboo Creative invoiced, or was entitled to invoice, prior to termination;
   (b) where the Fees include one or more lump sum amounts payable on achievement of one or more milestones, a fair and reasonable proportion of the next milestone payment, reflecting the cost and effort expended by Bamboo Creative up to the date of termination; and
   (c) any additional sums payable under this Agreement.
4. Termination or expiry of this Agreement will be without prejudice to the rights and remedies of the parties accrued prior to termination or expiration, including for any prior breach of this Agreement.
5. Clauses 5, 6, 7, 8.4and 10 will survive termination or expiry of this Agreement, along with any other clauses that are by their nature intended to survive termination.

DISPUTES

1. In the event of any dispute arising between the parties out of or in connection with this Agreement (Dispute), a party to the Agreement may give notice of the Dispute to the other party (Dispute Notice) and neither party may commence any court or arbitration proceedings relating to the Dispute except in accordance with this clause 9. This will not prevent either party from seeking urgent interlocutory relief.
2. On receipt of a Dispute Notice, the parties will endeavour in good faith to resolve the Dispute by discussion, consultation, negotiation or other informal means.
3. If the Dispute is not resolved within 15 Working Days (or any longer period agreed in writing by the parties) of receipt of the Dispute Notice, then either party may refer the Dispute to mediation, by giving written notice to the other party. The mediation will be conducted in accordance with the Resolution Institute Mediation Rules. If the parties cannot agree on a mediator within 5 Working Days of such notice, the mediator will be selected by the President for the time being of the Resolution Institute. If the Dispute is not resolved within 20 Working Days of the mediator being appointed, then each party has the right to pursue any other legal remedy available to it.

GENERAL

1. Bamboo Creative will not be liable for any failure to comply with its obligations under this Agreement to the extent that failure is caused by a Relief Event.
2. Any notice to be given in terms of this Agreement must be made in writing, or by email, and sent to the email address shown in the SLA or the registered office or principal place of business of the other party or to such other address as may be notified by either party to the other from time to time. Any communication by email will be deemed to be received when transmitted to the correct email address of the recipient with no error message being received by the sender. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or on the fifth day following posting.
3. No waiver of any breach of this Agreement will be deemed to be a waiver of any other or any subsequent breach. The failure of any party to enforce any provision of this Agreement at any time will not be interpreted as a waiver of the provision.
4. This Agreement constitutes the entire agreement between the parties and supersedes all previous negotiations, commitments and/or writings, provided that, where a confidentiality agreement has previously been signed by the parties, that confidentiality agreement will continue in full force and effect, except to the extent of any inconsistency with this Agreement.
5. No alteration of the terms of this Agreement will be binding unless it is in writing and executed by both parties.
6. The Client may not assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Bamboo Creative.
7. If any provision of this Agreement is invalid or unenforceable, the remaining provisions of this Agreement will not be affected and will continue in full force and effect.
8. This Agreement may be executed by the parties in counterparts, each of which will be deemed to be an original and all of which will constitute together one and the same agreement and all signatures need not appear on any one counterpart.
9. This Agreement is governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
10. Unless the Client obtains Bamboo Creative’s prior written approval (which may be given or withheld at Bamboo Creative’s absolute discretion), the Client shall not during the period that Bamboo Creative is contracted to perform the Services and for a period of six months following the completion of the Services employ or contract the services of any person who is or was employed or engaged by Bamboo Creative during the period of the Services in any capacity whatsoever.

INTERPRETATION

1. In this Agreement, unless the context requires otherwise:
   Agreement means the contract created by each SLA, including these Standard Terms and any Appendices.
   Background IP means Intellectual Property rights acquired or created before the date of this Agreement or independently of the Services and includes, in the case of Bamboo Creative’s Background IP any modifications or enhancements to Bamboo Creative’s Background IP.
   Bamboo Creative means Bamboo Creative Limited, NZ company number 6797393.
   Client means the client named in the SLA.
   Confidential Information means all information of any kind, whether or not it is in tangible or documentary form, and whether or not marked or identified as being confidential, relating to the Discloser or its business affairs and includes information relating to any of the Discloser’s business, technology or Background IP.
   Deliverables means all Software and Documentation that is (or is to be) delivered to the Client by Bamboo Creative pursuant to this Agreement.
   Developed IP means Intellectual Property rights arising through the performance of the Services, and as otherwise defined in the SLA, excluding any Retained IP.
   Documentation means the documentation (if any) provided by Bamboo Creative in relation to the Deliverables.
   GST means tax under the Goods and Services Tax Act 1985.
   Intellectual Property means any patent, trademark, service mark, copyright, moral rights, right in a design, rights to know-how and all or any other intellectual or industrial property rights whether or not registered.
   SLA means the statement of work, purchase SLA or other written exchange that references these Standard Terms and is signed by the Client and Bamboo Creative.
   Portfolio Materials means any promotional material (digital or otherwise) created by or for Bamboo Creative to promote, advertise or exhibit its work in relation to this Agreement.
   Relief Event means:
   (a) an event or circumstance beyond a party’s reasonable control, including (without limitation) war, civil commotion, hostility, act of terrorism, strike, lockout, other industrial act, weather phenomena, pandemic, epidemic, or other act of God, or governmental regulation or direction;
   (b) a failure or delay by the Client in meeting a milestone or due date designated as the responsibility of the Client in the SLA or other documentation agreed with the Client;
   (c) a failure or delay by the Client in carrying out its responsibilities set out or referred to in this Agreement or the SLA or other documentation agreed with the Client;
   (d) non-satisfaction of an assumption or dependency specified or referred to in the SLA or other documentation or other documentation agreed with the Client;
   (e) one or more items of information supplied by or on behalf of the Client for the purposes of the Services being materially incorrect or materially incomplete at the time of supply, where Bamboo Creative reasonably relies on that information for the purpose of planning, costing and/or performing the Services and/or Deliverables;
   (f) errors or defects in any code or tools provided by the Client, where those errors or defects interfere with the performance of the Services or operation of one or more Deliverables;
   (g) an update to a computer or mobile operating system on which a Deliverable is to operate, that is not anticipated in the SLA and that interferes with the operation of one or more Deliverables; and/or
   (h) any other event or circumstances which this Agreement deems to be a “Relief Event”.
   Retained IP means: (i) all Background IP in the Deliverables; and (ii) all Intellectual Property Rights in material that the SLA identifies as Retained IP.
   Services means the services specified in the SLA.
   Software means the object code and the source code version of the software application to be developed under this Agreement as more specifically described in the SLA.
   Specifications means the specifications for the Deliverables as described or referred to in the SLA.
   Third Party Component means any open source or third party component or material that Bamboo Creative incorporates into the Deliverables.
   Third Party Licence means the licence terms for each Third Party Component. Timetable means the timetable for completion of the various stages of the Services as set out or referred to in the SLA.
   Warranty Period means 30 days.
   Working Day means a day on which businesses and banks in Wellington are generally open for business.
2. In this Agreement:
   (a) clause and other headings are for ease of reference only and will not be deemed to form any part of the context or to affect the interpretation of this Agreement;
   (b) the word person includes a corporation; and
   (c) words importing the singular include the plural and vice versa.