Terms.
GOOD DIGITAL LIMITED TERMS OF BUSINESS
AS OF JANUARY 2022
1. INTERPRETATION
1.1 Definitions: In these Terms, unless the context otherwise requires:
"Additional Costs" has the meaning given to that term in clause 3.3;
"Business Day" means a day (other than a Saturday or Sunday) on which trading banks are open for normal banking business in Auckland but excludes any day during the period 24 December in one year to 5 January in the following year (dates inclusive);
"Business Hours" means the period of time between 9.00am and 5.00pm on any Business Day and Business Hour means any hour within that period, as the content may require;
"CGA" means the Consumer Guarantees Act 1993;
"Changes" has the meaning given to that term in clause 4.1;
"Client" means the person or entity that has accepted and agreed to the Proposal;
"Client Content" means all materials, information, photography, writings and other creative content provided by the Client for use in the preparation of, and/or incorporation in, the Deliverables;
"Deficiency" means a failure to comply with the specifications contained in the Proposal in any material respect, but does not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by the Client or any third party, or the interaction of Final Deliverables with third party applications such as web browsers (other than as specified in the Proposal);
"Deliverables" means the work product that is specified in the Proposal to be delivered by Good Digital to the Client;
"Expenses" has the meaning given to that term in clause 3.2;
"Final Art" means all creative content developed, created or commissioned by Good Digital exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including by way of example (and without limitation) any and all visual designs, visual elements, graphic design, illustrations, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Good Digital’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials;
"Final Deliverables" means the final versions of the Deliverables provided by Good Digital and accepted by the Client;
"Maintenance Period" has the meaning given to that term in clause 17.7;
"PPSA" means the Personal Properties Securities Act 1999;
"Preliminary Works" means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Good Digital and which may or may not be shown and/or delivered to the Client for consideration, but do not form part of the Final Art;
"Project" means the scope and purpose of the Client’s identified usage of the Deliverables as described in the Proposal;
"Proposal" means the proposal, quote, estimate or other document which is provided by Good Digital to the Client and sets out, amongst other items, Good Digital's fees and charges for the provision of the Deliverables and the Services, a description of the Project, and which these Terms form part of;
"Security Interest" has the meaning given to that term in clause 7.1;
"Services" means all services to be provided to the Client by Good Digital as described and otherwise further defined in the Proposal and includes the provision of the Deliverables, the Support Services and the Third Party Services;
"Standard Rates" means Good Digital's standard hourly service rates as set out in the Proposal (if applicable) or as otherwise set out in the Schedule of Rates;
"Sub-contractors" has the meaning given to that term in clause 10.4;
"Support Services" means technical support and assistance provided by Good Digital to the Client in order to maintain and update the Final Deliverables, including correcting any Deficiencies (as reasonably identified by the Client and agreed to by Good Digital), but shall not include the development of enhancements to the Project or other services outside the scope of the Proposal or the Final Deliverables (as those items have been agreed by the parties);
"Good Digital" means Good Digital Limited;
"Good Digital Help Desk" means the Good Digital Help Desk website and support system located at the following internet address: https://goodtech.freshdesk.com/helpdesk;
"Good Digital Tools" means all tools, ideas, processes, services, systems and methods developed and/or utilised by Good Digital in performing the Services, and any improvement upon or addition to them, including (without limitation) pre-existing and newly developed software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions, whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements, whether contained or included in the Deliverables or not;.
"Term" has the meaning given to that term in clause 15.1;
"Terms" means these terms including any Schedules;
"Third Party Materials" means proprietary third party materials which are incorporated into the Final Deliverables, including (without limitation) stock photography, software code or illustrations;
"Third Party Services" means any website hosting and related services (including email and FTP hosting), mobile marketing, or other services that may be provided by a third party to Good Digital and subsequently provided to the Client under these Terms;
"Trade marks" means any trademarks used in the Final Deliverables to designate the origin or source of the goods or services of the Client; and
"Warranty Period" has the meaning given to that term in clause 17.6;
1.2 Interpretation: In the interpretation of these Terms, unless the context otherwise requires:
(a) references to the parties include their respective executors, administrators, successors and permitted assigns;
(b) references to person include individuals, companies, partnerships, joint ventures, firms, associations, corporations and unincorporated bodies of persons, government or semi-government or local body or municipal bodies, and agencies or political subdivisions of them, and any other association or persons either corporate or unincorporated (in each case whether or not having separate legal personality);
(c) the singular will include the plural and vice versa;
(d) a gender includes each other gender;
(e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done;
(f) headings have been inserted for convenience only and will not affect the construction of these Terms;
(g) reference to a statute includes all statutes amending, consolidating or replacing the statute referred to;
(h) references to clauses and Schedules will be construed as references to clauses of, and Schedules to, these Terms;
(i) any Schedules form part of these Terms and have the same force and effect as if expressly set out in the body of these Terms and any references to these Terms will include such Schedules; and
(j) “including” and similar words do not imply any limitation.
2. CONSTRUCTION
2.1 Application of Terms: These Terms:
(a) apply to any and all:
(i) Proposals given by or on behalf of Good Digital;
(ii) Projects or other dealings that the Client may have with Good Digital;
(iii) Services and Deliverables that may be provided by Good Digital to the Client;
(b) continue to apply as between the Client and Good Digital where Good Digital is instructed to provide the Client with Services and no written agreement is entered into; and
(c) apply to the exclusion of all and any terms put by or on behalf of the Client to Good Digital as part of any Project or the provision of any Services.
1.2 Acceptance of Terms: The acceptance by the Client of any Proposal or Services indicates acceptance of these Terms.
3. PROPOSAL
3.1 Accuracy of information: Unless expressly recorded in writing, any estimate of the price of any Services that Good Digital may provide (including within a Proposal) will be based on information supplied by the Client. The Client agrees to provide full and accurate information in relation to any Proposal (including any estimate or quote) they may request. Good Digital is not liable for any inaccuracy in a Proposal that arises out of, or in connection with, information provided by the Client to Good Digital.
3.2 Status of Proposal: The terms of a Proposal shall be effective for 14 days after presentation to the Client. In the event the Proposal is not agreed to in writing by the Client within the timeframe specified, the Proposal may be subject to amendment, change or substitution at Good Digital's discretion and, for the avoidance of doubt, shall cease to be capable of being accepted by the Client.
4. FEES and CHARGES
4.1 Fees and taxes: In consideration of the Services to be performed by Good Digital, the Client agrees to pay to Good Digital fees in the amounts, and according to the payment schedule set forth in, the Proposal, as well as all applicable taxes (notwithstanding if such taxes are not included in the payment schedule).
4.2 Expenses: The Client shall pay Good Digital’s reasonable incidental and out-of-pocket expenses that it incurs in connection with the provision of the Services (including, but not limited to, couriers, typesetting, blueprints, models, presentation materials and photocopies) as well as any travel expenses that may be incurred by Good Digital and have been approved by the Client ("Expenses").
4.3 Additional costs: The Proposal pricing includes Good Digital’s fee only. Any and all third party costs (including, but not limited to, font licensing, illustration and/or photography licenses, and hosting) ("Additional Costs") will be billed to the Client unless specifically provided for otherwise in the Proposal.
4.4 Progress payments: Where a Project is to continue for longer than one calendar month, Good Digital shall be entitled to be paid by the Client a specified percentage (to be set out in the Proposal) of the total fees for the Services and Expenses incurred during each month ("Progress Payments"). The sum of any Progress Payments made shall then be deducted from the total amount due to be paid to Good Digital at the completion of the Project.
4.5 Invoicing: All invoices are payable within 15 days of receipt. Overdue balances will incur interest at a rate of 10% per annum and payments will be credited first to late payment charges (if any) and next to the Client's unpaid balance. The Client is responsible for all additional costs and fees incurred by Good Digital in the collection of late payments.
4.6 Non-payment: Good Digital reserves the right to withhold delivery, and any transfer of ownership, of any Deliverable if the Client's accounts with Good Digital are not current or overdue invoices have not been paid in full. All grants of any license to use, or the transfer of ownership of any intellectual property rights under these Terms are conditional upon receipt of payment in full which shall be inclusive of any and all outstanding, fees, charges, taxes, Additional Costs and Expenses, or the costs of Changes.
5. CHANGES
5.1 General Changes: Unless otherwise provided in the Proposal the Client shall pay additional charges for changes requested by the Client which are outside the scope of the Services and/or the Deliverables ("Changes") on a time and materials basis. Good Digital's hourly rates for such services are the Standard Rates. Such charges shall be in addition to all other amounts payable under a Proposal, notwithstanding any maximum budget, contract price or final price identified therein. Good Digital may extend or modify any delivery schedule or deadlines in the Proposal as may be required by the Changes.
5.2 Substantive Changes: If the Client requests or instructs Changes that amount to a revision in excess of 10% of the time required to produce the Deliverables (as estimated by Good Digital), and or the value or scope of the Services, Good Digital shall be entitled to submit a new and separate Proposal to the Client for written approval. Good Digital will not begin work on the revised services until a signed revised Proposal (and, if required, any additional deposit or other monies) are received by Good Digital.
5.3 Timing: Good Digital will prioritise the performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. The Client agrees to review the Deliverables within the time identified for such reviews and to promptly either:
(a) approve the Deliverables in writing; or
(b) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Good Digital.
Good Digital shall be entitled to request written clarification of any concern, objection or correction. The Client acknowledges and agrees that Good Digital’s ability to meet any and all schedules is entirely dependent upon the Client’s prompt performance of its obligations under this clause. Any delays in the Client’s performance or any Changes requested by the Client may delay delivery of the Deliverables and any such delay shall not constitute a breach of these Terms by Good Digital or a breach of Good Digital's obligations.
5.4 Testing and Acceptance: Good Digital will exercise commercially reasonable efforts to test any Deliverables that require testing and to make all necessary corrections prior to providing Deliverables to the Client. The Client, within five business days of receipt of each Deliverable, shall notify Good Digital, in writing, of any failure of the Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments the Client wishes made to the Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Good Digital will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to these Terms and in the absence of such notice from the Client, the Deliverables shall be deemed accepted.
6. CLIENT RESPONSIBILITIES
6.1 Responsibilities: The Client acknowledges that it is responsible for performing the following in a reasonable and timely manner:
(a) the co-ordination of any decision-making with parties other than Good Digital;
(b) the provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) final proofreading.
In the event that the Client has approved the Deliverables but errors (including, without limitation, typographic errors or misspellings) remain in the finished product, the Client shall incur the cost of correcting such errors.
7. ACCREDITATION and PROMOTIONS
7.1 Reserved right: The parties agree that, unless specifically prohibited by the Client in writing, Good Digital shall be entitled to describe its role in relation to the Project and its services provided to the Client in the context of any confidential discussions, presentations or proposals to any prospective or existing clients of Good Digital for the purpose of demonstrating Good Digital's capability and experience.
8. PPSA
8.1 Security interest: The Client acknowledges that these Terms create a security interest (as that term is defined in the PPSA) (“security interest”) in the Deliverables. The Client will, if requested by Good Digital, sign any documents (including any new agreements), provide all necessary information and do anything else required by Good Digital to ensure that the security interest is a perfected security interest (as that term is defined in the PPSA).
8.2 Other security interest: The Client will not enter into any agreement which permits any other person to register any security interest under the PPSA in respect of the Deliverables without Good Digital’s prior written consent.
8.3 Rights under the PPSA: If the Deliverables are for the Client’s business use, the Client agrees, to the extent Part 9 (enforcement) of the PPSA applies, that it will have no rights under Part 9 of the PPSA. For example, but without limitation:
(a) the Client will have no rights under section 114 (1)(a) (to receive a notice of sale) and section 133 (reinstating this contract); and
(b) the Client waives its rights under section 116 (to receive statement of account) and sections 120(2) and 121 (to receive notice of any proposal to retain the goods and object to any proposal).
8.4 PPSA statements: The Client waives its right under the PPSA to receive a copy of any verification statement or financing change statement (as those terms are defined in the PPSA).
9. INTELLECTUAL PROPERTY
9.1 Client Content: Client Content, including all pre-existing Trade marks, shall remain the sole property of the Client or its respective suppliers, and the Client or its suppliers shall be the sole owner of all rights in connection therewith. The Client hereby grants to Good Digital a non-exclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Good Digital’s performance of the Services and promotional uses of the Deliverables as authorised in these Terms.
9.2 Third Party Materials: All Third Party Materials are the exclusive property of their respective owners. Good Digital shall inform the Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Good Digital shall inform the Client of any need to license Third Party Materials, at the Client’s expense and unless otherwise provided for by the Client, the Client shall obtain the license(s) necessary to permit the Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event the Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, the Client hereby indemnifies, saves and holds harmless Good Digital from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party in relation to the Client’s failure to obtain copyright, trade mark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
9.3 Preliminary Works: Good Digital retains all rights in and to all Preliminary Works. The Agency shall return all Preliminary Works to Good Digital if or as requested on completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Good Digital.
9.4 Good Digital Tools: Unless specified in the Proposal, or otherwise agreed in writing by Good Digital and the Client, all Good Digital Tools are and shall remain the exclusive property of Good Digital. Good Digital hereby grants to the Client a non-exclusive, non-transferable, perpetual, worldwide license to use the Good Digital Tools solely to the extent necessary with the Final Deliverables for the Project. The Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Good Digital Tools comprising any software or technology of Good Digital.
9.5 Final Art: Upon completion of the Services, and expressly subject to full payment of all fees, taxes, Expenses and Additional Costs due, Good Digital hereby assigns to the Client all right, title and interest, including (without limitation) copyright and other intellectual property rights, in and to the Final Art. Good Digital agrees to reasonably cooperate with the Client and shall execute any additional documents reasonably necessary to evidence such assignment.
10. CONFIDENTIALITY
10.1 Confidential information: Subject to clause 6.1, each party acknowledges that in connection with the Proposal and the Services it may receive certain confidential or proprietary technical and business information and materials of the other party, including (without limitation) Preliminary Works (“Confidential Information”). Each party, its agents and employees will hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal and these Terms and except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
11. RELATIONSHIP OF THE PARTIES
11.1 Independent contractor: Good Digital is engaged by the Client as an independent contractor and not as an employee, agent, partner or joint venturer. Good Digital will provide the Services under the general direction of the Client and in accordance with the Proposal, but Good Digital shall determine, in Good Digital’s sole discretion, the manner and means by which the Services are accomplished.
11.2 No binding: Neither party is authorised to act as agent or bind the other party except as may be expressly stated in these Terms.
11.3 No entitlements: Good Digital acknowledges that there is no entitlement to payment from the Client for injury, sickness, superannuation, holidays or redundancy.
11.4 Sub-contractors: Good Digital shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Sub-contractors”). Notwithstanding this, Good Digital shall remain fully responsible for such Sub-contractors’ compliance with these Terms.
12. NO SOLICITATION AND NON-EXCLUSIVITY
12.1 No solicitation: During the Term and for a period of six months thereafter, the Client agrees not to, without the prior written consent of Good Digital, solicit, recruit, engage or otherwise employ or retain any employee or Sub-contractor of Good Digital.
12.2 Non-exclusivity: The parties expressly acknowledge that these Terms do not create an exclusive relationship between the parties. The Client is free to engage others to perform services of the same or similar nature to those provided by Good Digital, and Good Digital shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Good Digital.
13. WARRANTIES AND REPRESENTATIONS
13.1 Client: The Client represents, warrants and covenants to Good Digital that:
(a) the Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of, the Client Content;
(b) to the best of the Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trade marks in connection with the Project does not and will not violate the rights of any third parties;
(c) the Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; and
(d) the Client shall comply with all laws and regulations as they relate to the Services and the Deliverables.
13.2 Good Digital: Good Digital represents, warrants and covenants to the Client that:
(a) Good Digital will provide the Services identified in the Proposal in a professional and workmanlike manner and in accordance with reasonable professional standards for such services;
(b) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Good Digital and/or the Sub-contractors;
(c) to the best of Good Digital’s knowledge, the Final Art provided by Good Digital and the Sub-contractors does not infringe the rights of any party, and use of the same in connection with the Project will not violate the rights of any third parties; and
(d) subject to the representations and warranties of the Client in connection with Client Content, Good Digital represents and warrants that the Final Deliverables will be free from Deficiencies.
In the event that the Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or these Terms, all representations and warranties of Good Digital shall be void.
14. LIABILITY
14.1 Client liability: The Client agrees to indemnify, save and hold harmless Good Digital from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party in relation to any breach of the Client’s responsibilities or obligations, representations or warranties under these Terms.
14.2 Errors in work: Good Digital is not liable for errors or variations in the Services or the Final Deliverables where such errors or variations were contained in the Client Content or the Proposal.
14.3 Limitation of liability: Except as may be expressly provided in these Terms, Good Digital shall not be liable to the Client, whether for negligence, breach of contract, misrepresentation or otherwise, for loss or damage incurred by the Client as a result of third party claims, or for indirect or consequential damage suffered by the Client, which includes (without limitation) loss of profit, goodwill or business opportunities, in connection with the provision of the Services under these Terms.
14.4 Exclusions: Except for the express representations and warranties stated in these Terms and the Proposal (if any), all terms, conditions, warranties and representations, expressed or implied by statute, common law or otherwise (including, without limitation, those implied pursuant to the Sale of Goods Act 1908), in relation to the Services are excluded to the extent permitted by law. To the extent that Good Digital is not permitted by law to limit its liability as detailed in this clause, any liability Good Digital has to the Client is limited to re-supplying the relevant Services.
14.5 Consumer Guarantees Act: Subject to the Client not being a consumer for the purposes of the CGA, the Client agrees that the CGA does not apply to the supply of the Services. If the Client is a consumer for the purposes of the CGA, Good Digital's liability to the Client in connection with or arising from the supply of the Services shall be strictly limited to and shall not exceed that determined by reference to the provisions of the CGA.
15. SUB-CONTRACTING
15.1 No liability: For the avoidance of doubt, where the Client has sub-contracted, or purported to sub-contract, the Services on behalf of a third party such as their own client, or Good Digital otherwise provides services on behalf of the Client to a third party ("Third Party"), subject to the terms of any written agreement between Good Digital and the Third Party, Good Digital will have no liability to the Third Party whatsoever.
15.2 Sub-contracting indemnity: The Client agrees to indemnify, save and hold harmless Good Digital from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a Third Party in relation to the provision of services to that Third Party by Good Digital in accordance with clause 14.1 above.
16. TERM AND TERMINATION
16.1 Term: These Terms shall come into force on the date that any Proposal is accepted by the Client and shall remain effective until the Services are completed and delivered or they are otherwise terminated in accordance with clause 15.2 below (the "Term").
16.2 Termination: If any party:
(a) becomes insolvent, has a receiver or a liquidator appointed, enters into administration, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under these Terms, which breach is not remedied within ten days from receipt of written notice of such breach,
then these Terms may be terminated upon notice at any time by the other party. These Terms may also be terminated with the mutual written agreement of the parties.
16.3 Compensation on termination: In the event of termination, Good Digital shall be compensated for the Services performed up to the time of termination in the amount of:
(a) any advance payments;
(b) a prorated portion of the fees due (given the time, costs and effort expended by Good Digital on the Services, including the Proposal, up to that time); or
(c) hourly fees for work performed by Good Digital or the Sub-contractors as of the date of termination,
whichever amount is the greater and the Client shall also pay all Expenses incurred through and up to, the date of termination.
16.4 Title to Deliverables: Notwithstanding clause 16 below, in the event of termination by the Client and upon full payment of compensation as provided in clause 15.3 above (as agreed to and accepted by Good Digital), Good Digital grants to the Client such right and title as provided for in clause 8 of these Terms with respect to those Deliverables provided to, and accepted by the Client as of the date of termination.
16.5 Upon termination: Upon the termination of these Terms:
(a) each party shall return or, at the disclosing party’s request, destroy, the Confidential Information of the other party; and
(b) other than as provided herein, all rights and obligations of each party under these Terms, exclusive of the Services, shall survive.
17. RETENTION OF TITLE
17.1 Retention of title: Property (both legal and equitable) in any Deliverables shall not pass (and the Client is a bailee only in respect of such Deliverables) until payment in full is made in cash or cleared funds for all Services supplied by Good Digital.
17.2 No dealing: Until the Client has paid Good Digital in full for all Services, the Client may not sell, dispose of or charge any Deliverables it has received and must hold or deal with those Deliverables for and on behalf of Good Digital. If the Deliverables are sold prior to property passing to the Client, the proceeds of that sale must be held by the Client on trust for and on behalf of Good Digital.
17.3 Possession: Prior to the Client acquiring full property in any Deliverables, Good Digital or its agents may at any time enter upon any land, premises or property (both physical and virtual) where it believes such Deliverables may be, to view and inspect them, and, if the Client has not paid for them in full retake possession of the Deliverables. The Client will indemnify Good Digital on demand in respect of any costs or liabilities incurred by Good Digital in exercising its rights under this clause.
18. ON-GOING SUPPORT SERVICES
18.1 Support and enhancements: This clause 17 shall govern the provision of any Support Services where the same has been agreed to be provided by Good Digital in the relevant Proposal or as otherwise set out in these Terms.
18.2 Good Digital help desk: Where the Client requires Support Services, it must login and submit details of the service required or the problem encountered at the Good Digital Help Desk. The processing and management (including communications) of the Support Services will take place within the Good Digital Help Desk.
18.3 Support Services basis: All Support Services shall be provided by Good Digital on a commercially reasonable, "best efforts" basis and to the extent such services are practically able to be provided by Good Digital at the relevant time (having regard to its available resources and current projects). Except as may be specifically stated in this clause, Good Digital makes no representations or warranties as to the timeliness of the Support Services.
18.4 Support Services hours: The Support Services will only be provided during Business Hours and Good Digital will attempt to respond to all requests for Support Services within six Business Hours of receipt. Emergency or after-hours Support Services will be subject to the agreement of the parties as to the terms of such support.
18.5 Additional Support Services: Should Good Digital determine, in its reasonable discretion, that it is being required to provide an excessive amount of Support Services relative to the Services and/or the scope of the Project, it shall be entitled to
(a) inform the Client of this matter;
(b) restrict the Support Services it provides to the Client to that which it determines as may be considered "industry average" in relation to the Services and/or the scope of the Project; and
(c) attempt to agree with the Client the terms of the provision of any Support Services that may be required in the future.
18.6 Warranty Period: During the first 30 days following the delivery of the Final Deliverables ("Warranty Period"), Good Digital shall provide up to 8 hours of Support Services at no additional cost to the Client. Additional time shall be billed at the Standard Rates.
18.7 Maintenance Period: Upon the expiration of the Warranty Period and at the mutual agreement of the parties, Good Digital will provide Support Services for the following 60 days (the "Maintenance Period") at the Standard Rates. The parties may extend the Maintenance Period upon mutual written agreement.
18.8 Enhancements: During the Maintenance Period, the Client may request that Good Digital develop enhancements to the Final Deliverables. The terms of implementation of any such enhancements shall be at the mutual written agreement of the parties.
19. THIRD-PARTY SERVICES
19.1 Third Party Services: If the Client requires any Third Party Services and Good Digital agrees to provide such services, it shall do so only on the terms set out in this clause 18.
19.2 No liability: All Third Party Services are provided by a third party to Good Digital and resold to the Client. Good Digital has no control over the availability, uptime, quality, accessibility or otherwise of the Third Party Services. As such, Good Digital disclaims any and all liability in respect of the provision of any Third Party Services. In the unlikely event that there is an issue with a Third Party Service that requires support, the Client must log the issue through the Good Digital Help Desk using the procedure set out in clause 17.2 above. Good Digital will then contact the relevant third party and use its reasonable endeavours to co-ordinate and liaise with both parties in order to resolve the issue.
19.3 Third party terms: The terms of service between Good Digital and the provider of any Third Party Services ("Third Party Terms") shall be deemed to be incorporated into these Terms and accepted by the Client. The Third Party Terms shall apply between Good Digital and the Client as applicable and a copy of any Third Party terms, if applicable, is included with these Terms.
19.4 Client indemnity: The Client agrees to indemnify, save and hold harmless Good Digital from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party in relation to the Client's use of any Third Party Services whatsoever.
20. DISPUTES
20.1 Negotiations: The parties agree to meet and negotiate in good faith to resolve any and all disputes relating to or arising out of these Terms and the provision of the Services.
20.2 Mediation: If the parties cannot resolve a dispute by negotiations under clause 19.1 within 10 business days, any party may, by written notice to the others, require that the dispute be dealt with by mediation under the following terms:
(a) the mediation shall be conducted in terms of the LEADR New Zealand Inc. Standard Mediation Agreement; and
(b) the mediation shall be conducted by a mediator and at a fee agreed by the parties. Failing agreement between the parties, the mediator will be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.
20.3 Legal proceedings: If the parties cannot resolve a dispute by mediation under clause 19.2, within 30 business days after written notice to refer the dispute to mediation, either party may commence legal proceedings.
20.4 Interlocutory Relief: Nothing in this clause will prevent a party from seeking interlocutory relief.
21. GENERAL
21.1 Assignment: The Client is unable to assign or transfer, or purport to assign or transfer, its interest or any of its rights or obligations under these Terms or a Proposal without the prior written consent of Good Digital.
21.2 No Waiver: No party will be deemed to have waived any right under these Terms unless the waiver is in writing and signed by that party. A failure to exercise or delay in exercising any right under these Terms will not operate as a waiver of that right. Any such waiver will not constitute a waiver of any subsequent or continuing right or of any other provision in these Terms.
21.3 Variation and Cancellation: These Terms may not be varied or cancelled unless such variation or cancellation is expressly agreed in writing by a duly authorised representative of each party.
21.4 Force Majeure: Good Digital shall not be deemed in breach of these Terms if Good Digital is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, or any law, governmental order or regulation or any other event beyond Good Digital’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Good Digital shall give notice to the Client of its inability to perform or delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
21.5 Severability: If any provision of these Terms is found by a Court or other competent authority to be void or unenforceable such provision will be deemed to be deleted from these Terms and the remaining provisions of these Terms will continue in full force and effect. Despite the preceding sentence, the parties will, following such a finding, negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision found to be void or unenforceable.
21.6 Prevailing terms: These Terms will prevail and govern notwithstanding any different, conflicting or additional terms and conditions in relation to the Services which have not been expressly agreed to in writing by Good Digital.
21.7 Governing law and jurisdiction: The construction, validity and performance of these Terms will be governed in all respects by New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand Courts in respect of any dispute arising out of, or in connection with, these Terms.