These Terms of Trade were updated on March 27th, 2019.
For the purposes of this contract, where the terms below are used, the below meanings will be inferred.
“Additional Services” means any additional services (not being Hosting Services or Design, Consulting, Development and Marketing Services) that we agree to provide to you.
“Charges” means all charges payable by you to us for the Services you have selected in the Statement of Work. The Charges include amounts payable under any Change Specification or for Additional Services.
“Change Specification” has the meaning given in clause 4.
“Completion Date” means the date on which we advise you that the Solution meets the Acceptance Criteria, or is accepted as complete by the client, whichever comes first.
“Content Material” means all written copy, illustrations, diagrams, photographs or other materials provided to you as part of the Content Services.
“Early Termination Fee” means the sum of the following equation: (Cost of Services/Minimum Term) X number of months elapsed in Minimum Term, where the ‘Cost of Services’ is the sum of the list prices for each Service terminated before the end of the Minimum Term times a multiplier of 1.4.
“Intellectual Property” means all intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation of 1967 and, without limitation, includes any discovery, invention, novel or original designs (whether or not registrable as designs or patents), any trademarks or trade names or goodwill rights associated with such marks, applications for any of the foregoing, the copyright in any software, drawings, plans, specifications, designs, know-how and trade secrets owned or used, secret process or improvement in procedure.
“Minimum Term” means, where you are paying the Charges On Account, a fixed term of either 24 months or 36 months as selected by you on the Order Form, in each case which commences on the Completion Date.
“On Account” is where you pay the Charges for the Services by paying a deposit followed by equal instalments paid monthly in advance for not less than the Minimum Term as specified in the Order Form.
“Order Form” means the Smudge order form signed by or on behalf of you, which specifies the Services you require from us.
“Services” means the Design, Consulting, Development and Marketing Services, the Hosting Services and the Additional Services as described in clause 3.
“Statement of Work” means:
(a) the signed Order Form; and
(b) the Product Brochure (if any) for each Service you have ordered; and
(c) each agreed Change Specification (if any); and
(d) the specifications for any Solution which forms part of the Services.
“We” or “us” means Smudge Apps Limited and “our” has a corresponding meaning.
“App” means the App or Apps we create for you as part of the Design, Consulting, Development and Marketing Services.
“Design, Consulting, Development and Marketing Services” means the App design, consulting, development and marketing services and includes consulting, design, computer programming, content services, training and marketing services for the purpose of creating, improving and promoting the App or Apps.
“The Client” means the customer as named on the Statement of Work.
“Warranty Period” means 60 days from the completion date, whether or not the App has been put into service.
“Completion Date” means the date that the Acceptance Criteria is met or the date when the client accepts that the work is complete.
Smudge creates and maintains software for mobile devices and computers. The contracting party is Smudge Apps Limited, hereafter referred to as Smudge. The Client is the named party on the Statement of Work.
These terms apply to all Services that Smudge provide to you anytime, whether now or in the future. Where a definition is specified under clause 1, then that definition will apply for the purposes of the Services provided.
These Terms apply except where they have been expressly varied in writing and signed by both parties.
These Terms apply to any current instruction you give us, as well as any future instruction, whether or not we send you another copy of them. These Terms and the Statement of Work form the entire agreement between you and us. There is no need for you to sign these Terms in order to accept them. You accept them by continuing to instruct us to work for you.
We reserve the right to amend these Terms from time to time. Any such amendment will take effect from the date on which we notify you of the amendment.
We may provide you with the following Services:
Design, Consulting, Development and Marketing Services
We shall agree with you a Statement of Work detailing proposed Design, Consulting, Development and Marketing Services.
You agree to make information and resources available to us in a timely manner so that we can also fulfill our obligations to you under the Statement of Work in a timely manner.
We will use our reasonable endeavours to deliver the Design, Consulting, Development and Marketing Services to you in accordance with the Statement of Work.
iv: The Statement of Work is based on information that you provide to us. Therefore, you must make sure that you fully brief us on all matters. If you do not, the cost of the Statement of Work may change (see clause 4).
When the Statement of Work is agreed and signed by you it shall be deemed to be a complete statement of all of your requirements.
The provision of, and the cost for (if applicable), any Additional Services shall be as agreed by us in any Change Specification or Statement of Work agreed between us in relation to those Additional Services, and any such Additional Services will also be subject to these Terms as amended by us from time to time.
Sometimes projects require changes which weren't expected at the outset or you may request changes to the Services. This can involve less or more cost to you. If this happens, we will both try and agree on a written variation (including, if necessary, a price variation) to the Services (“Change Specification”). Any Change Specification will become part of the Statement of Work for that project. If we cannot agree on a variation (including the price of the variation), the Services will continue in accordance with the original Statement of Work.
We warrant that we will provide all our Services with the care and skill that can be expected from a competent mobile consultant and development company.
If Smudge supply you with an App, we also warrant that for 60 days from the Completion Date (“Warranty Period”) the App will conform to the Statement of Work. If this warranty is breached within the Warranty Period we will bring the App into conformity with the Statement of Work at our cost. Note that this warranty does not extend to any deviations caused by your alterations or modifications made by you or any third party that we have not permitted in writing, or any negligence or misuse of the App.
Except as mentioned above, all conditions and warranties, express or implied, are excluded to the maximum allowed by law. In particular, we do not warrant that the App (if any) will:
be completely free of defect or error; or
be completely secure; or
work on all devices.
If we recommend that you use someone else's products or services in conjunction with the Services, you agree that we will have no liability (however arising) in respect of such products or services or the provision of such products and services to you.
You agree that to the extent that the Services are purchased by you for the purpose of your business, the provisions of the Consumer Guarantees Act 1993 do not apply.
When we have, or are going to, supply you with Services, it is your responsibility to:
promptly provide all the information, assistance and approvals that we may reasonably require;
obtain, and if required pay for, any consents and licenses required for us to incorporate third party materials or software in the App; and
ensure that any services to be provided by you are delivered on time and to specification.
You confirm that all data, images, software and other information you supply to us in incorporate into the App (“Your Materials”):
are complete, accurate and not likely to mislead or deceive or cause damage to the reputation of any person or company; and
will not cause us to infringe upon any person's Intellectual Property or patent, registered design, or trademark in the execution of your order and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement; and
are not offensive, harmful, upsetting, unlawful, or otherwise objectionable. For the avoidance of doubt, this includes complying with the Film, Videos and Publications Classification Act 1993.
You agree that you will not, either on your own account or as a consultant, partner, agent, contractor, corporate trustee, shareholder or member of any other person or entity, induce, or attempt to induce, any employee, contractor or licensee of ours to terminate his or her employment or relationship with us. If an employee of our company is recruited by you without our consent then 1 years salary damages will be payable.
We need to be able to use our software libraries, code, layouts and templates for more than one client. Therefore, except for any Intellectual Property in Your Materials and any Content Materials, Smudge and its suppliers own all Intellectual Property in the App and all new Intellectual Property (if any) developed or created by us, our agents, employees and contractors in connection with the Services (collectively, “Smudge's IP”).
We also understand that you are paying for the App, and need to be able to use it. So, provided you meet your payment obligations for the App Design, Consulting, Development and Marketing Services you are granted a personal, non-exclusive, non-transferable licence to use Smudge's IP for the term of and in the manner anticipated in the Statement of Work. We warrant that we have the right to grant you a licence to use the Services in the manner anticipated in the Statement of Work. However, unless we have expressly agreed otherwise in writing, no licence is given for you to use Smudge's IP to develop any products or software that will be sold by you or anyone else, or any other products whatsoever other than those specified in the Statement of Work.
a) Contained within the Source Code of the App, there are program sequences and libraries that can be reused. These will remain the property of Smudge.
b) The Source Code may only be used for the sole purpose of using, updating and maintaining the App.
c) Under no circumstances is the Source Code to be shared with any third parties without our express prior written consent.
We will not be liable to you, or any third party, for any:
loss or damage to information or data from any cause;
breach of security;
loss of profit; or
incidental, indirect, special or consequential loss or damage.
In any event, the maximum aggregate liability of Smudge to you arising out of any claim for loss and/or damages (for any cause whatsoever) will under no circumstances exceed an amount equal to the total charges paid by you under the relevant Statement of Work in the 12 month period immediately preceding the event giving rise to liability.
The limitations and exclusions of liability in this clause 8 shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
Sometimes we will not be able to fulfill our responsibilities through no fault of our own. Therefore, we are not responsible for any failure or delay to perform our obligations due to events beyond our reasonable control or failure by you to perform any of your responsibilities under this agreement.
Standard Payment Terms:
You agree to pay the Charges for:
Design, Consulting, Development and Marketing Services as specified and in the manner provided in the relevant Statement of Work; and
any necessary accounts or subscriptions that may be required to distribute your App; and
Additional work that you requested that was carried out over and above the Statement of Work.
We will invoice you as specified in the Statement of Work. You agree:
to pay the deposit specified in the Statement of Work on receiving our written acceptance of your order; and
to pay the Charges by direct debit unless otherwise agreed in writing.
All Charges are in New Zealand dollars and are exclusive of all taxes and duties unless otherwise expressly specified on the Statement of Work.
Unless otherwise specified above, you agree to pay all invoices within 15 days of the invoice date. You shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute.
If you do not pay the Charges on time we may, at our option do any or all of the following:
suspend or restrict your use of the Services;
terminate the relevant Statement of Work in accordance with clause 12;
refer your account to our debt collection agency;
charge you all collection costs incurred by us, and you agree to indemnify us from and against all costs and disbursements incurred by us in recovering the unpaid charges (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, our collection agency costs, and bank dishonour fees);
charge you default interest from the date when payment became due, until the actual date of payment of all amounts owing (including default interest), at a rate of two percent (2%) per calendar month (which shall at our sole discretion compound monthly at such a rate) after as well as before any judgement.
You authorise us or our agents to:
a) access, collect, retain and use any information about you;
(including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing your creditworthiness;
for the purpose of meeting our obligations and enforcing our rights under this agreement and the Statement of Work; or
for the purpose of marketing products and services to you.
b) disclose information about you, whether collected by us from you directly or obtained by us from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by you.
c) with the exception of any Confidential Information, exchange the information we hold about you with our contractors, agents, representatives and carriers for the purpose of meeting our obligations under this agreement and the Statement of Work.
d) Monitor and record calls you make to us or we make to you in order to improve the service we provide to you and to assist us with meeting our obligations to you.
You shall have the right to request a copy of the information about you retained by us and the right to request us to correct any incorrect information about you held by us.
Each party will keep all information about the Statement of Work, the Services, the App and other information that is confidential to the other party (”Confidential Information”) confidential and will not disclose this information to a third party without the consent of the other party. Each party shall ensure that its employees, subcontractors, professional advisors and agents abide by these obligations of confidentiality.
Unless we agree otherwise in writing, we will each use any Confidential Information belonging to the other party only for the purposes of fulfilling our obligations to each other under the Statement of Work and as permitted in these Terms.
Confidential Information does not include information clearly required to be disclosed by law; or is generally known and available without a party having breached its obligations under this clause 11; or is, or has been, independently and lawfully acquired or developed without the benefit or use of the other party's Confidential Information.
Either of us may terminate a Statement of Work by providing written notice to the other party if the other party has either:
been placed in receivership or liquidation, or entered into an arrangement or makes an assignment for the benefit of its creditors, or has become insolvent or bankrupt; or
breached a term of the Statement of Work, these Terms and failed to remedy such breach after being given written notice allowing at least 30 days to remedy the breach.
If you have agreed to a Minimum Term in a Statement of Work, you may not terminate that Statement of Work (other than as specified in clause 12) until that Minimum Term is completed. You may otherwise terminate a Statement of Work by providing us with one month's written notice at any time.
We may terminate this agreement on the occurrence of any of the following events:
if you have not paid any charges within 14 days of the due date for payment, with the exception of any amounts that are the subject of a genuine dispute and which you have previously notified us in writing as being in dispute; or
if in our reasonable opinion, you are using the Services for any unlawful abusive, or fraudulent purpose;
if you fail to comply with a legal requirement of any of our carriers concerning your use of the Services;
if you commit a material breach of this agreement or any other agreement between us, when the breach is not reasonably capable of being remedied.
any amounts owing by you to us under the Statement of Work and these Terms must be paid immediately (including, without limitation, any applicable Early Termination Fee); and
subject to clause 12, we may be regarded as discharged from any further obligations under the Statement of Work .
Termination or cancellation of a Statement of Work shall not relieve either party from any right, liability, or claim that has accrued on or before the date of termination or cancellation. The provisions of clauses 5, 6, 7, 8, 9, 10, 11, 12 and 13 of these Terms will survive termination or cancellation of a Statement of Work.
Marketing and Publicity
Unless otherwise agreed in writing, you agree that we may:
list your company as a client in our marketing materials, including on our website; and
detail the Services we provided of the App or Apps we built in our marketing materials including on our Website; and
list any awards or external publicity that the App has received.
You agree that you will:
include a reference to Smudge in any press releases relating to the App; and
Include a reference to Smudge in and Awards that you enter the product in.
Variation of Terms
We may amend or replace these Terms from time to time. The amended or replacement Terms (“Amended Terms”) will then apply to the Services. We will tell you about any changes at least 30 days before they come into effect by notifying you by e-mail of the Amended Terms. You will be taken to have accepted the Amended Terms if you make a further request of us to provide Services to you or if you continue to make use of our Services and do not give us any notice to terminate this agreement.
Dispute Goes to Mediation Before Proceedings
You agree that, with the exception of urgent interlocutory relief in respect of use of confidential information or intellectual property in breach of this agreement, both of us will attempt to resolve any dispute under this agreement by negotiating in good faith for at least 14 days.
The failure by us to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it effect our right to subsequently enforce that provision. If any provision of this agreement shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
If any of your address details change, you agree to promptly provide us with your new address and contact details. We will send you notices and other communications to the last known address, fax number or email address you have given to us.
You warrant that you have the power to enter into this agreement and have obtained all necessary authorization to allow you do so, that you are not insolvent and that this agreement creates binding and valid legal obligations on you.
You may not assign any rights or obligations under this agreement without our prior written consent. We may assign any rights under this agreement without obtaining your prior approval. We may also sub-contract any of our obligations under this agreement, but in so doing, will not be relieved of any liability to you under this agreement.
We may decline your application for the Services (and/or any request for Additional Services) at our discretion and we do not have to disclose our credit criteria or the reasons for our decision.
These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand.