1.1 In this Agreement, including Section 1: Schedule and this Section 2: Terms and Conditions, unless the context requires otherwise:
“Business Day” means a day on which registered banks are open for business in Dunedin, New Zealand, excluding Saturdays, Sundays, statutory public holidays in Dunedin or any day in the period starting on 24 December and ending on the following 5 January;
"Confidential Information” means all information of any kind or form provided by or on behalf of one party ("Discloser") in connection with this Agreement, or concerning the Discloser, but does not include information which:
(a) was, at the time the information was provided, available to the general public;
(b) becomes, at a later date, available to the general public (other than as a result of a breach of this Agreement) and then only after the later date;
(c) the recipient can show
(i) was in its possession before the information was provided by or on behalf of the Discloser or
(ii) was developed independently by the recipient without reference to the information provided by or on behalf of the Discloser; or
(d) was disclosed to the recipient on a non-confidential basis by a third party who has the lawful right to disclose the information to the recipient.
and includes the terms of this Agreement;
“Existing Material” means any documentation, process, method, know-how, technique, tools of trade, Intellectual Property Rights or other material (whether or not used under or in connection with this Agreement), that is:
(a) owned by, or licensed by a third party to, a party before the Start Date; or
(b) developed or acquired by a party (or its licensors or suppliers) independently of this Agreement;
“Intellectual Property Rights” means all industrial and intellectual property rights whether conferred by statute, at common law or in equity, including, but not limited to:
(a) all copyright and similar rights that may subsist in works or other subject matter;
(b) rights in relation to inventions (including all patents and patent applications);
(c) trade secrets and know-how;
(d) rights in relation to designs (whether registrable);
(e) rights in relation to registered and unregistered trade marks;
(f) business names; and
(g) rights in relation to domain names
“Other Results” means all results that are not Deliverables;
“Project Intellectual Property” means the Intellectual Property Rights in and to the anticipated Deliverables;
1.2 Other capitalised terms have the meaning set out in the Schedule.
2.1 In undertaking the Project, the University shall:
(a) use reasonable skill and care in accordance with generally accepted standards applicable to the provision of similar types of services;
(b) comply with all laws and regulations applicable to the services;
(c) use reasonable endeavours to provide the Deliverables within the timeframes specified in the Schedule; and
(d) except as otherwise agreed in writing, all materials supplied by the Customer may be disposed of by OGF at the conclusion of the delivery of the Project
3. CUSTOMER'S OBLIGATIONS
3.1 To enable the University to undertake the Project, the Customer will provide the Customer Materials and Assistance to the University within the timeframes and in the manner set out in the Schedule. The University shall not be liable for any breach of this Agreement caused or contributed to by a breach of this clause 3.1 or by any other breach by, or act, omission or delay of, the Customer.
3.2 The Customer warrants that to the best of its knowledge:
(a) any Customer Materials it provides the University under or in connection with this Agreement have been prepared in accordance with all applicable laws, guidelines, consents, authorisations and approvals;
(b) it has obtained all necessary regulatory and ethical approvals, authorisations and consents to lawfully provide such Customer Materials to the University and the University’s use of those Customer Materials to undertake the Project will not infringe the rights of any person (including Intellectual Property Rights without having undertaken freedom to operate searches);
(c) it has obtained all regulatory and ethical approvals, releases, waivers, consents and authorisations required for the University to lawfully and ethically undertake the Project; and
(d) all personal information it provides to the University was obtained in accordance with the Privacy Act 1993, and the University's use of that information in undertaking the Project will not breach the Privacy Act 1993.
4.1 The University shall issue GST invoices for the Project Fee in accordance with the Schedule.
4.2 The Customer shall pay invoices by the 20th day of the month following the date of the invoice. Payments shall be made without deduction or set-off into the bank account designated by the University.
4.3 The University may charge interest on any outstanding amount at 10% per annum calculated on a daily basis from the due date until the date of actual payment.
4.4 All prices and charges are expressed in New Zealand dollars and are exclusive of GST and any other government imposed levies, surcharges or taxes (unless otherwise stated).
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Subject to clauses 5.2 and 5.3, provided the Customer is not in breach of this Agreement, all rights, title and interest in the Deliverables and the Project Intellectual Property vest exclusively in the Customer.
5.2 All rights, title and interest in the Other Results, and all Intellectual Property Rights in the Other Results, will vest exclusively in the University. The Customer will have no claim over, and no licence to use, the Other Results or any Intellectual Property Rights in them.
5.3 Each party (and its licensors and suppliers, as the case may be) retains ownership of all its Existing Material.
5.4 Nothing in the Agreement (including clause 6) restricts the University or its employees, students, agents and contractors from using any University Existing Materials for any purpose. Any modification or improvement of such Existing Material developed during the course of the services by the University or its employees, students, agents or contractors will form part of the Other Results, unless such modification or improvement is expressly stated in the Schedule to form part of the Deliverables.
5.5 The Customer grants to the University an irrevocable, perpetual, royalty-free, non-exclusive, transferable, sub-licensable, worldwide licence to use the Customer’s Existing Material provided to the University by the Customer, for the purpose of undertaking the Project.
6.1 Each party shall maintain the other party's Confidential Information as secret and confidential. A party shall not use, disclose, copy, reproduce or electronically store the other party's Confidential Information except to the extent:
(a) required by law, provided it has first given the other party reasonable prior notice of the disclosure; or
(b) necessary to carry out its obligations or exercise its rights under the Agreement, provided it ensures the recipient is made aware of and complies with the confidentiality obligations in this clause.
6.2 On termination or expiry of this Agreement each party shall (at the other party’s option) return or destroy the other party's Confidential Information. However a party may retain one copy to comply with any legal, accounting, taxation or ethical requirements. This clause shall not require a party to delete information from its electronic data back-up or disaster recovery system kept in the ordinary course of business.
6.3 The University will if given written permission by the Customer have the right to present at seminars, symposia, national or regional professional meetings, and to publish in journals, theses or dissertations, or otherwise of their own choosing, the Deliverables or Other Results.
6.4 The University agrees that the Customer may use the publicity statement wording specified in Part B: Project Details for label claims or product promotion.
6.5 Neither party shall refer to the other, or any of its staff or students, in any publication, media statement or marketing material without the other party’s prior written consent.
7. WARRANTIES, INDEMNITY AND LIABILITIES
7.1 Neither the University nor any of its officers, employees, students, contractors or agents gives any warranty or representation in relation to the Project, the Deliverables or the Project Intellectual Property. All warranties and representations (both express and implied) are excluded.
7.2 In no event will the University be liable for loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data, wasted staff time or for loss or liability of any kind that is indirect, consequential or of a special nature.
7.3 Notwithstanding anything to the contrary in this Agreement, the total aggregate liability of the University to the Customer under or in relation to this Agreement, the Project, the Deliverables and the Project Intellectual Property is the amount of the Project Fee paid by the Customer under this Agreement.
7.4 This clause 7 applies to the extent permitted by law, whatever the Customer is claiming for and however liability arises or might arise if not for this clause (whether in contract, tort (including negligence), equity or otherwise).
8. TERM AND TERMINATION
8.1 Either party may terminate this Agreement by written notice if the other party:
(a) does not fulfil any one or more of its obligations under this Agreement and the default:
i. has not been remedied 20 Business Days after the other party receives written notice of the default; or
ii. is material and cannot be remedied
(b) commits an act of bankruptcy, has a liquidator, receiver, administrator or statutory manager (or similar) appointed, is insolvent, ceases to carry on a substantial part of its business, makes any composition or arrangement with its creditors or has execution levied upon all or any part of its assets (except where the execution is contested in good faith or if within 5 Business Days after it is levied, payment is made in full to the judgement creditor in question of all amounts owing to such judgement creditor).
8.2 The University may terminate the Agreement immediately by giving written notice to the Customer if the University is no longer able to provide the Deliverables due to equipment failure or unavailability, or due to the appropriate staff or students no longer being available at the University, provided the University shall make every reasonable effort to complete the Project and shall consult with the Customer regarding any difficulties as soon as they arise.
8.3 On termination the University shall immediately stop undertaking the Project and the Customer shall pay the University:
(a) all Project Fee outstanding at the termination date; and
(b) a proportion of the Project Fee reasonably determined by the University to fairly reflect the Deliverables completed but not paid for at the termination date and any costs reasonably incurred by the University that cannot be avoided.
(c) The University shall return all Customer Materials and provide the Deliverables, or any part of the Deliverables that have been completed, to the Customer, provided the Customer has complied with this clause 8.3. The University may retain one copy to comply with any legal, accounting, taxation or ethical requirements.
9. DISPUTE RESOLUTION
9.1 If any party has any dispute with the other in connection with this Agreement, that party must give written notice to the other specifying particulars of the dispute. The parties shall promptly meet to attempt to resolve the dispute in good faith.
9.2 Either party may require the dispute to be resolved by mediation, to be conducted by a mediator appointed by the parties, or if they cannot agree, a mediator appointed by the Chair of the Resolution Institute.
9.3 The parties will comply with this clause 9 to attempt to resolve any dispute before commencing Court proceedings.
9.4 Nothing in this clause 9 shall prevent either party seeking urgent interlocutory relief from the Courts.
10.1 Each notice to be given under this Agreement must be given in writing and may be sent to the postal, fax or email address set out in the Schedule or any replacement postal, fax or email address notified by the relevant party from time to time.
10.2 Each party shall promptly give written notice to the other party of any change to their contact details set out in the Schedule from time to time and shall be responsible for any notices that are not received by that party due to any failure or delay to give such notice of any change.
11.1 In the event of any conflict between the Terms and Conditions and the Schedule, the conflicting terms the Schedule (including any variations set out in the Schedule) shall apply.
11.2 The University will not be liable to the Customer for any breach or failure to perform any of its obligations under the Agreement where such breach or failure is caused by anything beyond the University’s reasonable control, including (without limitation) war, civil commotion, hostility, act of terrorism, strike, lockout, other industrial act, weather phenomena or other act of God, governmental regulation or direction.
11.3 No variation to this Agreement will be effective unless it is made in writing and has been signed or otherwise agreed in writing by both parties.
Neither party may sell, assign, transfer, novate, charge, pledge or otherwise encumber the Agreement, or any of its rights or obligations under the Agreement, without first obtaining the written consent of the other party (not to be unreasonably withheld or delayed). Any change in the Customer's effective ownership or control