Special Terms and Conditions

These terms apply to all work we carry out for you unless we agree otherwise in writing.

“We” means MIDS Ltd, a New Zealand registered company. We provide a number of information technology services including but not limited to web design, digital marketing and mobile app development.

You agree with the following additional terms also apply to all engagements, paid and unpaid:-

Where applicable, a final version of our deliverable will be presented to you for your acceptance. You will have five business days to determine, acting reasonably, whether that deliverable meets the specification that was mutually agreed. If no issue is raised by you within the five day period, or you use the deliverable for any purpose, you will be deemed to have accepted the deliverable.
Either party may request an amendment to this agreement (including by the addition of any services or deliverable and/or the extension of any time frame within which they are to be provided) by providing written notice of a change request. A change request will become binding when signed by both parties. If you agree that we should prepare a change request, we are entitled to charge for the reasonable costs of preparing that request.

The parties acknowledge that, unless otherwise stated, the timeframes and fees contained in the engagement letter are estimates and related to the original agreed work and associated assumptions. A change in the scope of the work, will also mean a change in the timeframes as well as cost.

We will not be responsible for the performance, operation, or functionality of any third-party applications provided to you under or in connection with this agreement. Third-party applications include software, databases, applications, or products supplied or procured by us but which are not owned by us . You agree to comply at all times with the terms of any license agreements required by the providers of third-party applications supplied to you as part of the services

We accept no liability for

(a) any indirect or consequential loss or damage arising under or in connection with this engagement (even if foreseeable or even if advised of the possibility of such damages);

(b) any economic loss, including loss of profits, revenue, anticipated savings, goodwill, increased operating costs or business opportunity; or

The technology and content provided by the Supplier, unless specified otherwise in writing is owned by or licensed to the Supplier. Content includes but not limited to text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code, and software .

For all content, imagery, or photography provided to the Supplier in the provision of the Services, the Client hereby warrants:

a. they own the intellectual property rights in that content;

b. that content does not infringe the intellectual property rights of a third party; o c. that content is not fraudulent, stolen, or otherwise unlawful;

c. that content does not violate any applicable law, statute, ordinance, or regulation (including but not limited to, those governing export control, consumer protection, unfair competition, or criminal law);

d. that content is not defamatory, unlawfully threatening or unlawfully harassing;

e. that content does not contain viruses or other computer codes, files, or programs that are designed to limit or destroy the functionality of other computer software or hardware.

The Supplier at its sole discretion reserves the right to refuse any content it considers to be in contravention with any of the above statements. The Supplier and its licensors retain all proprietary rights to that content and technology and other intellectual property rights in any work created, commissioned, or otherwise acquired by the Supplier during the implementation of the Services until full payment has been received.

Upon full payment, the Supplier hereby agrees to transfer to the Client all rights title and interest in the copyright and other intellectual property rights in all artwork, manuals, information, material reports, source code, and other output which is produced, extended, or modified during the implementation of the Services.

This Agreement and the Proposal together form the entire agreement between the parties about its subject matter and supersedes all other discussions, negotiations, representations, arrangements, warranties, or agreements.

Any rights under this Agreement may not be waived or varied except in writing signed by the party to be bound. Unless otherwise expressly stated in the Contract, no waiver or relaxation in whole or in part of any of the terms and conditions of the Agreement will be binding on the Supplier unless in writing and signed.

This Agreement constitutes the entire understanding between MIDS and yourselves in relation to the current engagement. We currently have no obligation to you in respect of any services performed by us in connection with this engagement other than those obligations set out in this letter, and those subsequently agreed to by MIDS in writing and those implied by law.

The client agrees that MIDS may disclose the organisation as a client, by name and/or logo, in its marketing materials. In addition, the Client gives MIDS the right to Client’s logo on documents prepared for the Client internally (e.g. internal presentations, etc.).

Please confirm your agreement to and acceptance of the terms of this letter and the attachment by signing and returning to us the enclosed copy. Alternatively, if the client agrees to proceed with the work through mutual discussion and/or an email and if we invoiced based on that, it is assumed that the client has accepted the terms and conditions to proceed with the work.

We have procedures in place to identify and respond to conflicts of interest. If a conflict of interest arises we will advise you and discuss an appropriate solution.

We will hold in confidence all confidential or proprietary information concerning you or your affairs that we acquire in the course of providing services to you.

We will not disclose such information to any other person unless:

You instruct us to do so; or
We are required by law to do so; or
Such disclosures are made for the purpose of complying with MIDS’s internal quality assurance processes.

We will not disclose to you confidential information belonging to any other client. You will hold in confidence any proprietary or confidential information belonging to us.

You agree to provide us promptly with any information or assistance that we reasonably require to perform the agreed services, including access to your premises, staff, records, information technology, and other systems. We are entitled to assume the accuracy of any information which you give us or which anyone else gives us on your behalf.

We will communicate our advice to you in writing.

You may not rely on any advice given orally, in the draft, or on an interim basis.

You agree not to:

Use our services or advice other than for the purpose for which they were sought,
disclose to any other persons any advice or opinion we give you, or
use our name in connection with any offering document, financial statement, report, or another public document, without our prior written consent.

Our duties are owed to you. They do not extend to any associated persons, such as shareholders, related companies, directors or employees, or family members. We do not undertake to update any advice, report, or other work product after we have issued it in final form.

Our fees, or the basis upon which our fees will be calculated, will be informed separately.

In addition to our professional fees, we may incur costs or make payments to third parties on your behalf. In such cases, we will charge you the cost incurred by us.

GST (if any) will be added to our fees and other charges.

Our invoices are payable in full within 7 days of the billing date unless we have agreed otherwise with you.

If any amount you owe us is more than 7 days overdue: • we may charge bank interest at the rate of 2% above the 90-day Bank bill rate;

we may suspend work; and
we may exercise a lien over any of your documents that are in our possession.

You will acquire ownership of our final work product upon payment of our fees and other charges, save that we will retain all ownership rights in all our intellectual property. Our work papers, which do not form an integral part of our final work product, will remain our property.

You authorise us to communicate with you and others electronically.

Electronic services and communications can be subject to interference, interceptions, or corruption. We do not represent or warrant that our electronic services or communications will always be accurate, complete, confidential, and secure.

Upon completing the agreed services and payment of our fees and other charges, we will return your documents to you (including share registers or company constitutions). We may retain copies of any documents we return to you.

If we breach any duty we owe to you, our liability will be limited to the professional fees you have paid MIDS for performing the services under this agreement. You agree to release us from all claims arising out of or in connection with our services to the extent that our liability to you would otherwise exceed this amount. This limitation of liability will apply:

To any claim whatsoever that you may have against us; and
To any kind of loss or damage you may suffer.

Any claim you may have against us (whether based upon negligence or breach of a contractual, statutory, or other duty) will be further limited to the extent that you or anyone acting for you has contributed in any way to any loss or damage you have suffered.
The limitations of liability in this section apply to the maximum extent permitted by law.

You must indemnify us, to the maximum permitted by law, against any and all costs, expenses, or liabilities we incur to any person:

In relation to any claim against us by a third party arising from or connected with any breach of your obligations to use;
By relying on any information provided to us by you or on your behalf and which is false, misleading, or incomplete.

We always welcome your feedback on our services. We are committed to investigating and resolving any concerns or complaints you may have as soon as possible. In some cases, it may be necessary for us to suspend work until the dispute is resolved. If we cannot agree on the solution to your concern, we will both attempt to resolve the matter through mediation or some other form of alternative dispute resolution, before commencing legal proceedings. You must commence any court proceedings against us within three years of the cause of action arising.

You may terminate this agreement at any time by giving us 30 calendar days prior notice in writing.

We may terminate this agreement for good cause and by giving you 30 calendar days prior written notice.

Good cause includes:

If there has been any change of law, rule, regulation or professional standard or a change in circumstance that would cause the continued provisions of services by us under this agreement to violate such law, rule, regulation or professional standard or would otherwise, in our reasonable opinion, prejudice our ability to comply with any applicable auditor independence requirements;
If you fail to provide instructions or information as and when we reasonably require;
If you fail to pay our fees and expenses on the agreed basis;
If you become insolvent;
If our services are suspended for more than 10 days due to non-payment of our fees and charges or a dispute.

If this agreement is terminated, you must pay our fees due up to the date of termination and all expenses incurred up to that date.

Terms that shall survive termination of this agreement include those in sections (confidentiality), (Ownership of the work product), (Limitations of our liability to you), and (Your indemnity to us)

Our relationship with you is governed by New Zealand law. New Zealand courts (In Auckland) shall have exclusive jurisdiction over any dispute arising out of this agreement or the agreed services. These terms, and our engagement letter, do not affect any statutory right you may have irrespective of any term of your agreement with us. The terms of the contractual relationship between us are set out in their entirety in these terms and our engagement letter. No statement or representation that we have made to you that is not recorded in these terms or in our engagement letter shall form part of the contract between us.