1 . DEFINITIONS-
1.1 “Pulse Media” shall mean Angela Purcell T/A Pulse Media it’s successors and assignees or any person acting on behalf of and with the authority of Angela Purcell T/A Pulse Media.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, proposal, work authorisation or other forms as provided by Pulse Media to the Client.
1.3 “Goods” shall mean Goods supplied by Pulse Media to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Pulse Media to the Client.
1.4 “Services” shall mean all services supplied by Pulse Media to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Pulse Media and the Client in accordance with clause 2 of this contract.
2. WORK AND PAYMENT-
2.1 Project/Scope of Work- The Client is hiring Pulse Media to do the following as agreed in the Marketing Proposal/Scope of Work/Quote.
2.2 Acceptance- Any instructions received by Pulse Media from the Client for the supply of Goods or Services and/or the Client’s acceptance of Goods or Services supplied by Pulse Media shall constitute acceptance of the terms and conditions contained herein.
Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Pulse Media.
2.3 Schedule- This Contract can be ended by either Client or Pulse Media at any time, for any reason by sending an email or letter to the other party, informing the recipient that the sender is ending the Contract and that the Contract will end in 14 days.
If you are paying monthly for services, all balances on your account must be paid in full and you will be invoiced your outstanding balances due. This must be paid within 7 days.
2.4 Price- At Pulse Media’s sole discretion the Price shall be either:
a) as indicated on invoices provided by Pulse Media to the Client in respect of Goods or Services supplied; or
b) Pulse Media’s quoted Price which shall be binding upon Pulse Media provided that the Client shall accept Pulse Media’s quotation in writing within thirty (30) days.
Work that falls outside the initially agreed scope will be charged on an hourly rate basis. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside the agreed scope and, if requested, will give you an estimate of the likely amount of the further costs.
2.5 Expenses- Client agrees to reimburse Pulse Media for any of the following expenses necessary in completion of the Work: (e.g. Fonts, Templates, Proofs, Props, Software, Stock photography, Travel, Printing Services etc). Pulse Media must obtain the Client’s written approval before purchasing or ordering any goods or services, materials or equipment on behalf of the Client.
2.6 Invoices- Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
2.7 Deposits and Setup Costs– Where indicated for Goods and Services, an invoice for 50% Deposit or Setup Costs of the price for the project will be provided on acceptance of the proposal. This invoice is strictly Cash on Delivery (COD) and must be paid before the project can commence.
2.8 Completed Projects- Once a project is complete and approved by the client the final 50% will be invoiced. Payment for this invoice is strictly Cash on Delivery (COD) unless otherwise arranged.
2.9 Withholding Information– If you are responsible for withholding information for completion, the Web site is then deemed payable in full after 90 days from the initial start date.
2.10 Non-Payment– If we are forced to hand your account over to a debt collection agency for collection you will be liable for any collection costs incurred.
3. OWNERSHIP AND LICENSES-
3.1 Client Owns All Work Product- Within the scope of this contract, Pulse Media is creating “work product” for the Client. To avoid confusion, work product is the finished product, as well as drafts, notes, materials, mock-ups, hardware, designs, inventions, patents, code, and anything else that Pulse Media works on—that is, conceives, creates, designs, develops, invents, works on, or reduces to practice—as part of this project, whether before the date of this Contract or after. Pulse Media hereby gives the Client this work product once the Client pays for it in full. This means Pulse Media is giving the Client all of its rights, titles, and interests in and to the work product (including intellectual property rights), and the Client will be the sole owner of it. The Client can use the work product however it wants, or it can decide not to use the work product at all. The Client, for example, can modify, destroy, or sell it, as it sees fit.
3.2 Pulse Media’s Use Of Work Product- Once Pulse Media gives the work product to the Client, Pulse Media does not have any rights to it, except those that the Client explicitly gives Pulse Media here.
3.3 Pulse Media’s IP That Is Not Work Product- During the course of this project, Pulse Media might use intellectual property that Pulse Media owns or has licensed from a third party, but that does not qualify as “work product.” This is called “background IP.” Possible examples of background IP are pre-existing code, type fonts, properly licensed stock photos, and web application tools. Pulse Media is not giving the Client this background IP. But, as part of the Contract, Pulse Media is giving the Client a right to use and license (with the right to sublicense) the background IP to develop, market, sell, and support the Client’s products and services. The Client may use this background IP worldwide and free of charge, but it cannot transfer its rights to the background IP (except as allowed in Section 7.1 (Assignment)). The Client cannot sell or license the background IP separately from its products or services. Pulse Media cannot take back this grant, and this grant does not end when the Contract is over.
3.4 Pulse Media’s Right To Use Client IP- Pulse Media may need to use the Client’s intellectual property to do its job. For example, if the Client is hiring Pulse Media to build a website, Pulse Media may have to use the Client’s logo. The Client agrees to let Pulse Media use the Client’s intellectual property and other intellectual property that the Client controls to the extent reasonably necessary to do Pulse Media’s job. Beyond that, the Client is not giving Pulse Media any intellectual property rights, unless specifically stated otherwise in this Contract.
3.5 Client-Supplied Material Does Not Infringe- If the Client provides Pulse Media with material to incorporate into the work product, the Client promises that this material does not infringe on someone else’s intellectual property rights.
3.6 Pulse Media Has Right To Give Client Work Product- Pulse Media promises that it owns the work product, that Pulse Media is able to give the work product to the Client, and that no other party will claim that it owns the work product. If Pulse Media uses employees or subcontractors, Pulse Media also promises that these employees and subcontractors have signed contracts with Pulse Media giving Pulse Media any rights that the employees or subcontractors have related to Pulse Media’s background IP and work product.
3.7 Work Product Does Not Infringe- Pulse Media promises that its work product does not and will not infringe on someone else’s intellectual property rights, that Pulse Media has the right to let the Client use the background IP, and that this Contract does not and will not violate any contract that Pulse Media has entered into or will enter into with someone else
4. INDEPENDENT CONTRACTOR- The Client is hiring Pulse Media as an independent contractor. The following statements accurately reflect their relationship:
- Pulse Media will use its own equipment, tools, and material to do the work.
- The Client will not control how the job is performed on a day-to-day basis. Rather, Pulse Media is responsible for determining when, where, and how it will carry out the work.
- The Client will not provide Pulse Media with any training.
- The Client and Pulse Media do not have a partnership or employer-employee relationship.
- Pulse Media cannot enter into contracts, make promises, or act on behalf of the Client.
- Pulse Media is not entitled to the Client’s benefits (e.g., group insurance, retirement benefits, retirement plans, vacation days).
- Pulse Media is responsible for its own taxes.
- The Client will not withhold taxes or make payments for ACC for Pulse Media or any of Pulse Media’s employees or subcontractors.
5. CONFIDENTIAL INFORMATION-
5.1 Overview- This Contract imposes special restrictions on how the Client and Pulse Media must handle confidential information. These obligations are explained in this section.
5.2 Client Obligations– The Client must keep all Confidential Information relating to Pulse Media confidential and only use it for the purposes it was made available; and not disclose Confidential Information relating to Pulse Media without Pulse Media’s written approval, unless it is necessary for the purposes of the Services or the Works to disclose it to any appropriate third party, or as required by law.
5.3 Pulse Media Obligations– Pulse Media must keep all Confidential Information relating to the Client or the Client’s Project confidential and only use it for the purposes it was made available; and not disclose any Confidential Information relating to the Client or the Client’s Project or the Works without the Client’s written approval, unless it is necessary for the purposes of the Services or Works to disclose it to any appropriate third party, or as required by law.
5.4 Exclusions- If the Client is subject to the Official Information Act 1982, the Local Government Official Information and Meetings Act 1987 or the Privacy Act 1993 then Pulse Media acknowledges that, pursuant to those Acts, the Client may be required to release information about the Services, the Client’s Project or this Agreement.
If either Party is legally bound to disclose Confidential Information, that Party must first advise the other Party what information will be provided and limit the information to that required by the law.
Pulse Media and any Subcontractors personnel may be required to disclose Confidential Information if required by their code of professional ethics. In such cases, Pulse Media shall advise the Client of this requirement and limit the information disclosed to that necessary to comply with the applicable code of ethics.
5.5 Return of Confidential Information- Upon request, Pulse Media must promptly return to the Client or destroy all Confidential Information which is in Pulse Media’s possession or control.
6. LIMITATION OF LIABILITY- Neither party is liable for breach-of-contract damages that the breaching party could not reasonably have foreseen when it entered this Contract. Pulse Media shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Pulse Media in this Contract.
7.1 Assignment- Pulse Media may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
7.2 Arbitration- As the exclusive means of initiating adversarial proceedings to resolve any dispute arising under this Contract, a party may demand that the dispute be resolved by arbitration administered by the Arbitrators & Mediators Institute of New Zealand Inc in accordance with its commercial arbitration rules.
7.3 Modification; Waiver- Any waiver given by either Party in connection with this Agreement is binding only if it is in writing, and then strictly in accordance with the terms on which it is given. Subject to this clause, no waiver given by either Party for the purposes of this Agreement affects or limits that Party’s rights against the other Party under this Agreement. No modification to this Agreement shall be effective unless it is in writing and signed by both Parties.
7.4 Notices – All demands, notices, requirements, and consents this Agreement authorises or requires, or that relate to this Agreement, must be in writing and will take effect from receipt at any one of the addresses shown in the Special Conditions. These may be delivered:
• by hand, in which case a written confirmation of receipt is required, or
• by registered letter, or
• by email, in which case, receipt will take effect upon receipt by the sender of the email message indicating that the email has been opened at the recipient’s terminal, provided that any communication received or deemed received after 5 pm, or on a day which is not a Working Day, shall be deemed not to have been received until the next Working Day.
7.5 Severability- Each term of this Agreement is separately valid and binding. If for any reason either party cannot rely on any term, all other terms will remain valid and binding, and the Parties will negotiate in good faith for an alternative term with similar financial effect for both Parties.
7.6 Authority to Sign- Each party promises to the other party that it has the authority to enter into this Contract and to perform all of its obligations under this Contract.
7.7 Governing Law – This Agreement is subject to New Zealand law. References to dollars are references to New Zealand dollars unless otherwise stated. Any arbitration or court proceedings about this Agreement, or the Services, must be brought and heard in New Zealand. Pulse Media promises that the manner it does this contract, its work product, and any background IP it uses comply with applicable laws and regulations.
7.8 Entire Contract- This Contract represents the parties’ final and complete understanding of the Project/Scope of Work/Quote and the subject matter discussed in this Contract. This Contract supersedes all other contracts (both written and oral) between the parties.