Sanderson Howe

Introduction

The parties have agreed to establish a non-exclusive relationship under which Sanderson Howe will provide you goods and/or professional services.

This Agreement forms the standard terms and conditions under which Sanderson Howe and you agree to operate.

For each new project, the parties will enter into a new Statement of Work that incorporates (unless otherwise agreed) these Master Terms and Conditions.

Terms and Conditions

These terms and conditions shall apply to any work you agree to undertake with Sanderson Howe.

Sanderson Howe will provide such resources that are required to deliver such services in accordance with duly authorised Statements of Work. IT IS AGREED as follows:

Interpretation and Definitions
1. In this agreement, and any attached Statement of Work, the following terms shall, unless the context otherwise admits or requires, have (with or without the definite article) the following meanings:
  "Agreement" means this agreement including all schedules attached to or incorporated into it by reference.
  
  "SH", "Sanderson Howe", "we" or "us" means Sanderson Howe Limited, an incorporated company, having its registered office at: 59a Jack Boyd Drive, Mangawhai heads, Kaiwaka, New Zealand.
  
  "Client", "you" or "your" means either the natural person(s) and/or the corporate entity (or entities) that have entered into a binding Agreement with Sanderson Howe for Goods and/or Services under the Agreement.
  
  Sanderson Howe and the Client may each be referred to herein as a "Party" and collectively as the "Parties".
  
  "Deliverables" refers to any items to be delivered to the Client, as specified in a Statement of Work.
  
  "Facilities" refers to any items described in any Statement of Work (including such things as workstations, computers, LAN access) to be provided by Sanderson Howe or the Client as specified in a Statement of Work.
  
  "Intellectual Property" means copyright, patents, designs, trade marks, trade names, goodwill rights, trade secrets, confidential information and any other intellectual proprietary right or form of intellectual property.
  
  "Statement of Work" refers to a statement of work in the form attached as schedule 1 which is completed for a specific project and signed off by the parties, and which includes such details as scope, deliverables and timeframe, acceptance criteria, changes and other relevant details.
  
  "Services" refers to professional software services to be provided to the Client as described in any Statement of Work.
  
  "Project" refers to any project that the Client defines and duly authorises in accordance with a Statement of Work.
  
  "Responsibilities" refers to the specific responsibilities relating to a Project that both parties agree to make, as detailed in any Statement of Work.
  
  "Quality Manager" refers to the person nominated by Sanderson Howe in any Statement of Work.
  
  In this agreement reference to the plural includes reference to the singular, and vice versa.
2. Headings inserted in this agreement are for convenience of reference only and do not affect the interpretation of this agreement.
Statements of Work
1. Sanderson Howe will perform and provide Services and Deliverables to the Client in accordance with each Statement of Work.
2. All Statements of Work executed under this Agreement shall be subject to the terms and conditions of this Agreement.
3. Either party may request a variation to an existing Statement of Work in accordance with the change request procedures in clause 8.2 or 8.3.
Acceptance
1. Sanderson Howe will notify the Client when the Deliverables are ready for acceptance by the Client.
2. The Client will, within ten working days following receipt of Sanderson Howe's notification that the Deliverables are ready for acceptance:
  1. issue to Sanderson Howe an acceptance notice in writing confirming acceptance of the Deliverables; or
  2. notify Sanderson Howe in writing if the Client does not accept the Deliverables. The Client's notice is to specify those Deliverables that are not accepted and the reason for not accepting them by reference to the requirements for that Deliverable in the Statement of Work. Sanderson Howe will then consult with the Client to agree a process and time frame for gaining acceptance for the Deliverables. The Deliverables will be deemed accepted if no notice is received under this clause 3.2 or if the Client uses the Deliverables for productive and/or commercial purposes.
Charges and Expenses
1. Each Statement of Work shall detail the charges payable by the Client, and any additional expenses that relate to the Services and Deliverables being provided by Sanderson Howe.
2. All Services shall be provided on a "time and materials" basis unless otherwise specified in a Statement of Work. Sanderson Howe shall maintain accurate, detailed records of time expended. These can be requested at any time and a summary will be presented monthly in support of the invoice supplied to the Client.
3. All reasonable accommodation, travel and other expenses incurred in the execution of the Services will be refundable provided that the incurring of such an expense has been agreed to in advance by the Client. Expenses will be invoiced on a monthly basis by Sanderson Howe.
Payment Terms
1. Unless otherwise specified in a Statement of Work the payment terms shall be 20th of the month following the Month End Date as shown on the Sanderson Howe invoice.
2. Unless otherwise specified in a Statement of Work, Sanderson Howe shall issue invoices on a monthly basis.
3. All charges are exclusive of any GST, or other taxes and duties; these are also payable by the Client.
4. If the Client does not raise a genuine dispute in writing within 10 working days of receiving an invoice, they agree to pay all invoices on time. If the Client repeatedly fails to pay Sanderson Howe invoices on time Sanderson Howe reserves the right to suspend the provision of the Services and Deliverables being provided under the Statement of Work the invoices pertain to. If Sanderson Howe intends to suspend work Sanderson Howe shall provide the Client with two (2) days written notice.
5. Should this agreement be terminated then the Client shall pay for all Services and Deliverables provided up to and including the date of termination.
6. The Client shall not withhold payment on any invoice to offset any claim not related to the invoice. In some instances, a deposit will be required and held by Sanderson Howe to help protect the client's project from failing should they not be able to pay its invoices. If such a deposit is agreed on, the following terms apply:
  1. The amount will be agreed on in writing and signed by both parties.
  2. The deposit will be paid by the Client and held by Sanderson Howe until the termination of this contract, the deposit has been spent or by mutual agreement.
  3. The deposit shall only be utilised for the provision of services to the Client, or to offset any charges incurred by us as a result of any action taken by the Client.
  4. If the contract is terminated, all invoices have been paid or by mutual agreement, Sanderson Howe will refund any remaining deposit.
  5. Overdue amounts: Sanderson Howe may charge interest at 2% per month or part month on any amount overdue for payment under this agreement. All fees and charges incurred in recovering overdue payments are payable by you including, but not limited to, costs on a solicitor client basis and any debt recovery fees.
Title
1. Title to those Deliverables that are intended to become the Client property passes to the Client when Sanderson Howe receives payment for those Deliverables, as identified in the Statement of Work. Where the Client is to own Intellectual Property pursuant to clause 14, the Client will own that Intellectual Property as and when the Client pays for it notwithstanding that the relevant project may not be completed.
Risk of Loss
1. Risk of loss or damage for all Deliverables passes from Sanderson Howe to the Client upon delivery of those Deliverables to the Client site identified in the Statement of Work.
Change Control
1. The type of job will be specified in the Statement of Work. If no type of job has been specified, it is assumed that the project will be delivered as a Continuous Development project.
2. Continuous Development change control procedure comprises the following five steps:
  1. Initiation - A change may be initiated either by Sanderson Howe or the Client. In order for the Client to initiate a change, a change request is to be raised and delivered to Sanderson Howe in writing.
  2. Discussion - If required, a conversation will be had to define the details of the work.
  3. Development - The modified software will be delivered to the Client upon completion of programming and testing by Sanderson Howe.
  4. Acceptance - Before modified software is installed into the live system it may first pass through acceptance testing by the Client. During acceptance testing, if the software is found not to be functioning in accordance with the specification then it will be rectified.
  5. Documentation - Any documentation required will be provided
3. Feature Priced change control procedure comprises the following six steps:
  1. Initiation - A change may be initiated either by Sanderson Howe or the Client. In order for the Client to initiate a change, a change request is to be raised and delivered to Sanderson Howe in writing.
  2. Specification - A specification will be delivered to the Client for review. The Client will sign off the specification to indicate approval once satisfied with the specification.
  3. Quotation - When the specification has been approved, a quotation for the development, project management, documentation (if required) and quality assurance work necessarily involved in modifying the software will be prepared by Sanderson Howe. Once approved by the Client, the development work will commence.
  4. Development - The modified software will be delivered to the Client upon completion of programming and testing by Sanderson Howe.
  5. Acceptance - Before modified software is installed into the live system it may first pass through acceptance testing by the Client. During acceptance testing, if the software is found not to be functioning in accordance with the specification then it will be rectified.
  6. Documentation - Draft documentation including release notes will be forwarded to the Client if documentation was included in the quotation.
Confidential Information
1. All confidential information that one party discloses to the other party during the term of this Agreement remains the property of the disclosing party. Neither party will, without the prior written consent of the other party:
  1. Disclose any confidential information or any information received in confidence from the other party, to any person except its directors, employees and contractors who have a bona fide need to know for the purposes of performance of this Agreement or any Statement of Work.
  2. Copy confidential information or remove or retain any confidential information except in the normal course of performance under this Agreement. The restrictions in this clause 9.1 do not apply in respect of any information which is: on receipt, in the public domain or which subsequently enters the public domain without any breach of this Agreement; on receipt, already known by the party receiving it (otherwise than as a result of receipt by the other party); at any time after the date of receipt, received in good faith from a third party; or required by law to be disclosed.
  3. Upon termination of this Agreement each party will immediately return/or arrange the return to the other party of all confidential information belonging to the other party.
Publicity
1. Neither party will advertise or publicly announce any matter relating to the existence of this Agreement, without the other's prior written consent that will not be unreasonably withheld.
Access Security
1. Sanderson Howe shall comply with the Client's security procedures for access to the Client site and equipment but shall not be responsible for any delays resulting from delays in obtaining access.
Personnel and Quality Management
1. The personnel assigned to provide the Services under this Agreement and any associated Statement of Work will have the requisite skills and expertise for the purpose and will carry out their duties with due care and skill.
2. Sanderson Howe will endeavour to assign personnel that will stay on the project until they have completed all of their assigned responsibilities. Should Sanderson Howe be required to re-assign personnel, Sanderson Howe will give reasonable notice before withdrawing a person from the project before that person has completed all of his assigned responsibilities, and work with the Client to find a suitable replacement.
3. Sanderson Howe acknowledges responsibility for the quality of the professional services being provided. If the Client believes that there are any quality issues with the services being provided then the Client shall advise the Quality Manager who will consult with the Client to either rectify the issues or find a suitable replacement for the consultant.
4. Unless agreed in writing, each party shall not employ, or otherwise engage the services of, the other party's personnel (including employees, contractors and subcontractors). This clause shall apply for six months after the completion of any project defined for such personnel in a Statement of Work.
Facilities
1. Where access to, and use of, specific Client or Sanderson Howe facilities is required in order to provide the Services and/or Deliverables, the Facilities will be described in the Statement of Work.
2. The party responsible for the provision of those facilities shall make them available when they are required to enable the work to be completed.
Intellectual Property Rights
1. Any Intellectual Property owned by the Client which the Client provides or makes available to Sanderson Howe remains the property of the Client and nothing in this Agreement operates to assign the ownership of that Intellectual Property to Sanderson Howe.
2. Subject to clauses 8.1, 14.3 and 14.4, all Intellectual Property developed or created by Sanderson Howe in the execution of its obligations under this Agreement shall be the sole property of the Client.
3. If Sanderson Howe undertakes development work for the Client to customise or modify in any way an application which the Client has a licence to use, granted to it by a third party, ownership of the Intellectual Property in that development work will vest in the third party or its licensor (as applicable); ownership of that Intellectual Property will not vest in the Client unless agreed otherwise between the Client and the relevant third party.
4. Sanderson Howe owns, and will continue to own, the Intellectual Property in the methodologies, processes and know-how that it uses to provide the Services and Deliverables. Sanderson Howe also owns and will continue to own all Intellectual Property in any of its pre-existing code used in the provision of Services or to create or incorporated into the Deliverables. Sanderson Howe grants to the Client a non-exclusive licence to use Client the Intellectual Property referred to in this clause to the extent required for the Client to make use of the Services and Deliverables. This licence will survive the termination of this Agreement.
Sub Contracting
1. Sanderson Howe may use Sub-Contractors to meet obligations relating to the Services and Deliverables to be provided in any Statement of Work.
Liability
1. Neither party shall be liable to the other party for any loss, damage claim or liability suffered or incurred by the other party due to any Act of Parliament, regulation of direction, outbreak or state emergency, Act of God or warlike hostilities, civil commotion, riot, epidemic, storm, fire, strike, lockout or any other similar cause or causes, whether happening in New Zealand or elsewhere, beyond the reasonable control of the party whose performance is affected by such causes or causes.
2. Neither party shall be liable for damages arising from disclosure of any confidential information if that information was already in the public domain at the time it was disclosed or if it is disclosed inadvertently despite the exercise of the same degree of care as the disclosing party takes to preserve and safeguard its own confidential information.
3. Sanderson Howe is only liable for losses which flow directly or naturally from a breach of this Agreement, but excluding loss of profits, up to a maximum of the amount paid by the Client under the Statement of Work in respect of which the claim arose.
4. Sanderson Howe has no liability to the Client for any loss, damage or injury whether arising in contract, tort (including negligence), equity or otherwise which does not flow directly or naturally (i.e. in the ordinary course of things) from a breach of this Agreement.
Termination
1. This Agreement cannot be terminated whilst the Services and Deliverables in an agreed Statement of Work are being undertaken unless:
  1. One party is in breach of any of its obligations under this agreement and has not remedied that breach within seven (7) days of being requested to do so in writing by the other party; or One party becomes insolvent; or
  2. There is an event of serious misconduct, theft, fraud, negligence or behaviour, which is detrimental to the other party's reputation or goodwill.
  3. Otherwise, either party may terminate this agreement by giving the other party thirty (30) days written notice of their intention to terminate, or if a termination time is specifically stated in the Statement of Work, that will take precedence.
  4. By mutual agreement.
Notices
1. All notices or other communications to be given under this Agreement shall be given at the recipient's last known place of address (or such other address within New Zealand as that party may have specified in writing), and shall be deemed to have been duly given or made:
  1. in the case of a communication by letter on the third day after being posted by mail, correctly addressed and stamped;
  2. if given by hand, on personal delivery to the recipient or to such address; and
  3. in the case of a communication by email or facsimile when transmitted with no indication of incomplete transmission to the recipient's last known email address or facsimile number. In the case of notice by email or facsimile the communication shall immediately be followed by the posting or delivery of an original notice as set out above.
2. The notified addresses and email addresses of the parties are as listed under "Parties" at the top of this document.
Dispute Resolution
1. In the event of any dispute arising between the parties in relation to this agreement, no party may commence any proceedings relating to the dispute (except where the party seeks urgent interlocutory relief) unless the parties have first made genuine efforts to resolve the dispute as follows:
  1. By negotiation between Sanderson Howe Quality Manager and the Client; then
  2. If negotiation under clause 19.1 has not resolved the dispute within 7 Business Days, by the Chief Executives or the equivalent of Sanderson Howe and Client Company Limited; then,
  3. If negotiation under clause 19.2 has not resolved the dispute within 7 Business Days, and if agreed by the parties, by mediation in New Zealand utilising an independent mediator agreed by the parties, or if such mediator is not agreed by the parties, appointed by the then Chairperson of Resolution Institute. Nothing in this clause 19 precludes a party from applying to a court for urgent or equitable relief.
Force majeure
1. Either party may suspend its obligations to perform this Agreement if it is unable to perform as a direct result of a Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event continues. For the purposes of this clause 20, "Force Majeure Event" means any war, riot, strike, natural or man-made disaster or other circumstance of a similar nature.
2. Where a party's obligations have been suspended pursuant to clause
3. for a period of 30 days or more, the other party may immediately terminate this Agreement by giving notice in writing to the other party.
Technology
1. Sanderson Howe will support technologies for browsers and computer settings that were current at the time of development. We accept no responsibility if technology changes and a product or service is no longer accessible.
General
1. Assignment: The Client shall not assign its rights under this Agreement without the prior written consent of Sanderson Howe.
2. Subcontracting: The Client shall not be entitled to subcontract any of the Client's obligations under this Agreement without the prior written consent of Sanderson Howe.
3. Entire agreement: This Agreement constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
4. Further assurances: The parties must each do all such further acts (and sign any documents), as may be necessary or desirable for effecting the transactions contemplated by this Agreement.
5. Amendments: Except as specifically provided, no amendment to this Agreement will be effective unless it is in writing and signed by both parties.
6. Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
7. Partial invalidity: If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.
Governing Law
1. This agreement shall be governed by and interpreted according to the laws of New Zealand.

Introduction

Terms and Conditions

Interpretation and Definitions

Statements of Work

Acceptance

Charges and Expenses

Payment Terms

Title

Risk of Loss

Change Control

Confidential Information

Publicity

Access Security

Personnel and Quality Management

Facilities

Intellectual Property Rights

Sub Contracting

Liability

Termination

Notices

Dispute Resolution

Force majeure

Technology

General

Governing Law