FLIGHT INNOVATIONS LIMITED GENERAL TERMS
1.1 Special Terms: Capitalised terms not defined in the General Terms have the meaning set out in the Special Terms.
1.2 Definitions: In this Agreement unless the context otherwise requires:
Agreement means the Special Terms and the General Terms.
Client Content means any information or material provided by the Client to be incorporated into the Deliverables.
Completion means, in relation to a Defined Project, the time when Flight Digital, in its absolute discretion, gives written notice to the Client that the Services have been completed.
Defined Project means a one off implementation of brand marketing and/or technology project.
Deliverables means the services and work product delivered by Flight Digital to the Client in accordance with this Agreement.
Final Budget means a detailed analysis of the likely time and cost to provide the Services for a Defined Project to Completion, which is included in the Project Charter (as amended from time to time in accordance with clause 3.6).
Initial Budget means the high level budget for a Defined Project which is included in the Proposal.
Flight Digital means Flight Innovations Limited trading as Flight Digital.
Price has the meaning set out in the Special Terms or Proposal.
Proposal means the document provided to the Client by Flight Digital which is headed “Proposal” and includes a description of the Services required and, where the Services are a Defined Project, includes the Initial Budget.
Project Charter means the detailed scope and plans for delivering and implementing the Defined Project and includes the Final Budget.
Ratecard means the hourly rates charged for Services based on the function and experience of Flight Digital personnel who provide the Services.
Services means all services and the work product for either a Defined Project or SLA to be provided to the Client by Flight Digital (as amended from time to time in accordance with clause 3.6).
SLA means an arrangement whereby Flight Digital provides ongoing and recurring Services for the Term, for example search engine optimisation, digital asset maintenance and retained design and development.
Term has the meaning set out in the Special Terms or Proposal.
Third Party Materials means any material which are incorporated into the Deliverables, including without limitation stock photography or illustrations, and which are not owned by Flight Digital or the Client.
Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Deliverables to designate the origin or source of the goods or services of the Client owned by, or licensed to, the Client.
2.1 Services: Subject to clause 3, the Client agrees to acquire the Services from Flight Digital and Flight Digital agrees to provide the Services to the Client for the Term and in accordance with the terms and conditions in this Agreement.
2.2 Standard of Services: Flight Digital will provide the Services in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
2.3 Timing: Flight Digital will undertake commercially reasonable efforts to perform the Services within any timeframe(s) identified in the Special Terms or Proposal. Flight Digital will have no liability to the Client or any other person for any delay in performing the Services within the required timeframe(s)).
- DEFINED PROJECT – FINAL BUDGET
3.1 Detailed Scope and Final Budget: At the first stage of any Defined Project, Flight Digital shall, and based on the Proposal, prepare and submit to the Client a Project Charter.
3.2 Approval to Proceed: The Client shall approve the Final Budget by written notice to Flight Digital within 30 days of the Final Budget being submitted by Flight Digital.
3.3 Termination: If the Client does not approve the Final Budget in writing within the timeframe set out in clause 3.2 then either party may terminate this Agreement in accordance with clause 11.4(a).
3.4 Services not to exceed Final Budget: Notwithstanding anything in this Agreement Flight Digital shall not provide any Services where the value of the Services exceeds the Final Budget, without written approval from the Client.
3.5 Notice: If at any time during the Term it becomes apparent to Flight Digital that the Services will not be completed within the Final Budget then Flight Digital shall give written notice to the Client of the likely costs to Completion.
3.6 Variation: After receipt of the notice under clause 3.5, the Client shall either:
(a) request Flight Digital to amend the Final Budget; or
(b) reduce the Services required,
such that the Services can be delivered within the Final Budget.
- DEFINED PROJECT – INVOICING AND PAYMENT TERMS
4.1 Deposit Invoices: Where the Initial Budget exceeds $5,000 (excluding GST), Flight Digital shall issue the Client with an invoice (Deposit Invoice) equal to 20-60% of the Initial Budget prior to commencing the Services. Flight Digital shall not be required to commence the Services until it has received payment of the Deposit Invoice in full.
4.2 Monthly Progress Invoices: Flight Digital shall issue invoices (Monthly Progress Invoices) to the Client at the end of each month for an amount which, in Flight Digital’s absolute and unrestricted opinion, reflects a percentage of the Defined Project’s progress to date and progress anticipated for the upcoming coming month multiplied by the Final Budget.
4.3 Completion Invoice: Where Flight Digital, in its absolute and uncontrolled discretion, expects that the Services will be completed in the next month, Flight Digital may issue an invoice (Completion Invoice) to the Client which is calculated as follows:
(a) All Services provided in respect of the Defined Project as at the date of the Completion Invoice for the time and at the cost set out in the final budget plus
(b) Flight Digital’s reasonable estimate of time and costs for providing the Services to Completion; less
(c) Amounts invoiced pursuant to clauses 4.1 and 4.2.
4.4 Payment: Subject to clause 4.6, the Client shall pay:
(a) The Deposit Invoice and Monthly Progress Invoices within 7 days of the date the invoice is issued;
(b) The Completion Invoice on the date and time specified on that invoice.
4.5 Interest: The Client acknowledges that payment of all amounts due under this Agreement on time is essential to Flight Digital The Client will pay Flight Digital interest, if demanded, on any amount due but not paid, from the due date until the date of payment at the rate of 10% per annum calculated daily and compounded monthly. Interest shall continue to accrue both before and after judgment. This clause is without prejudice to any other rights or remedies available to Flight Digital under this Agreement or at law.
4.6 Credit Account: The Client may apply to Flight Digital for a credit account. To be eligible to apply for a credit account the Client must complete a credit application form, have an estimated monthly average spend above $10,000 (excluding GST), provide a personal guarantee from its principal director(s) or shareholder(s) (as required by Flight Digital) and satisfy such other eligibility criteria as Flight Digital determines from time to time. If Flight Digital, in its absolute discretion, authorises the Client to operate a credit account, then references in this Agreement to payment within 7 days of invoice mean payment on the 20th of the month following the date of the invoice.
- HOURLY RATES, ADDITIONAL CHARGES, EXTERNAL COSTS AND DISBURSEMENTS
5.1 Urgent work: Flight Digital may charge at their discretion an increased hourly rate (Urgent work rate) to all accounts where it has had to prioritise the Client’s work over other clients in order to meet a deadline not within a normal timeframe (5 business days) or otherwise contemplated by the Final Budget. The Client will be notified that this urgency premium applies prior to the work commencing.
5.2 Change of production schedule: The Client acknowledges that when a project production schedule is booked the Client is committed to pay for the use of those resources on those dates. If the Client does not comply with the agreed schedule in terms of feedback, comment, iterations, the supply of required content or any other Client input required by Flight Digital or requests a change to the production schedule, without prejudice to any rights of Flight Digital the Client shall pay for Flight Digital’s scheduled resource which cannot be re-allocated.
5.3 External Costs and Disbursements: Flight Digital may issue invoices and require the Client to pay those invoices in advance for external costs and disbursements including but not limited to: photography services, videography services, hosting plans, SEO services, campaign services, media space, fonts, stock images and plugins. Any and all outside costs will be billed to Client unless specifically otherwise provided for in the Special Terms or Proposal. Flight Digital will charge a standard 20% booking and management fee on all external cost and disbursements unless agreed otherwise in writing.
6.1 Price: In relation to all SLAs, the Client and Flight Digital acknowledge and agree:
(a) that the Price has been determined based on time budgeted for particular personnel during each month of the Term;
(b) Flight Digital shall invoice the Client monthly in advance on 7 day terms;
(c) hours allocated are not rolled over from month to month;
(d) the Client shall not be entitled to any refund or credit of any Price;
(e) all time in attendance spent outside of the agreed services will be charged additional at the end of each month; and
(f) if the actual cost of time (at the rates set out in the Rate card) spent by Flight Digital delivering the Services for two consecutive months is 20% or more than the amount paid by the Client for that period, Flight Digital may adjust the Price and subsequent payments due by the Client to reflect the increased level of Services.
6.2 Automatic Renewal: Any SLA is deemed to automatically renew at the end of the Term for a further period equal to the first Term on the same terms and conditions.
6.3 Ratecard: At any time after the first renewal of the SLA Flight Digital may give the Client 30 days’ notice of changes to the Price for the SLA.
6.4 Termination: At any time after the first renewal of the SLA either party may give the other party 90 days’ notice to terminate the SLA.
- CLIENT OBLIGATIONS
7.1 The Client shall be responsible for performing the following in a reasonable and timely manner:
(a) allocating at least one person in the Client organisation who is authorised to issue instructions, provide responses and request variations;
(b) responding to all Flight Digital requests in a timely manner or by any date/time required by Flight Digital;
(c) providing accurate and complete information and materials requested by Flight Digital such as, without limitation, any layout and content requirements;
(d) providing Flight Digital remote access to the Client’s website and social media profiles for the purposes of providing the Services in accordance with the terms of the Agreement; and
(e) final proofreading and written approval of all Deliverables including, by way of example, without limitation, artwork and content. In the event that Client has approved work containing errors or omissions, such as, without limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors.
8.1 Client Warranties: The Client warrants to Flight 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 for incorporation into the Deliverables;
(b) any material provided by the Client to Flight Digital does not infringe the rights (including intellectual property rights) of any third party; and
(c) the Client shall comply with any licensing agreements governing the use of Third Party Materials to the extent applicable to it.
8.2 Reliance on Warranties: The Client acknowledges that Flight Digital’s ability to provide the Services is dependent upon the Client’s warranties set out in clause 8.1 being true and correct at all times.
8.3 Flight Digital Warranties: Flight Digital represents and warrants to the Client that, to the best of its knowledge and belief:
(a) except for Third Party Materials and Client Content, the Deliverables shall be the original work of Flight Digital and/or its independent contractors; and
(b) without having made any enquiries, the Final Art does not infringe the rights (including intellectual property rights) of any other person.
8.4 Limit on Flight Digital Warranties: Except for the express representations and warranties stated in this agreement, Flight Digital makes no warranties whatsoever in respect of the Services or the Deliverables and excludes any and all warranties implied by law.
- INTELLECTUAL PROPERTY RIGHTS
9.1 Client Content: Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. The Client hereby grants to Flight Digital a nonexclusive, non-transferable royalty free license to use, reproduce, modify, display and publish the Client Content (including the Trademarks) solely in connection with Flight Digital’s performance of the Services and limited promotional uses of the Deliverables provided for in clause 15.8.
9.2 Final Art: At the time when all payments under the Agreement have been made in full the copyright in any final artwork created or commissioned by Flight Digital specifically for the purpose of delivering the Services are deemed to be assigned by Flight Digital to the Client. Until such time ownership and rights to the final art are assigned to the Client those rights will remain owned by Flight Digital. For the avoidance of doubt any other artwork shall be licenced to the Client under clause 9.4.
9.3 Flight Digital Intellectual Property: Except for the Client Content (clause 9.1) and final art (clause 9.2), all intellectual property which is created, developed, licenced to or used by Flight Digital in the Deliverables or performance of the Services (including, without limitation, concepts, designs, ideas, improvements, inventions, know how, procedures and systems) shall be the sole and exclusive property of Flight Digital and the Client shall have no rights to that intellectual property except as provided in clause 9.4 (licence to use).
9.4 Licence to Use Flight Digital’s Intellectual Property: At the time when all payments under the Agreement have been made in full Flight Digital grants to the Client an irrevocable and royalty free non-exclusive license to use, reproduce, modify, display and publish any other intellectual property which is created, developed, licenced to or used by Flight Digital in the Deliverables or performance of the Services. For the avoidance of doubt the Client shall be free to modify the property licenced under this clause as they see fit however the Client may not transfer or dispose of any of the property licenced under this clause without the prior written consent of Flight Digital.
9.5 Goodwill: All goodwill resulting from Flight Digital’s use of the intellectual property rights licensed to the Client under this Agreement shall be owned exclusively by Flight Digital.
9.6 Flight Digital Working Files: Unless otherwise agreed in writing Flight Digital retains all proprietary rights in and to any and all concept and preliminary works, project documents prepared by Flight Digital and working files, including research documents, design files and any similar documents (Working Documents). Flight Digital will consider any Client request to purchase any Working Documents and if Flight Digital agrees to sell any Working Documents, Flight Digital will specify the cost (as time and materials are required to prepare these files for distribution).
9.7 Third Party Materials: Third Party Materials are the exclusive property of their respective owners. Flight Digital shall:
(a) identify to the Client any Third Party Materials that may be required to perform the Services or otherwise integrated into the Deliverables;
(b) identify to the Client whether any licence is required for the Third Party Materials; and
(c) at the Client’s expense, and unless otherwise provided for by the Client, Flight Digital shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein.
- EXCLUSIONS AND LIMITATIONS OF LIABILITY AND CLIENT INDEMNITY
10.1 General Exclusion of Liability: Flight Digital is not liable to the Client or any other person or entity (whether in contract, tort (including negligence) or otherwise) for the loss of any business opportunity, loss of profits, loss of revenue, loss of data, loss of website traffic or any consequential, indirect, or pure economic loss, damage, liability or costs incurred by the Client as a result of any defect in the Services or the Deliverables or any failure by Flight Digital to perform its obligations under this Agreement, even if such loss was, or should have been, within its contemplation.
10.2 Specific Exclusion of Liability: Flight Digital is not liable to the Client or any other person or entity and excludes all liability to those persons for any damage or loss, direct or indirect, incidental, special or consequential, whether or not that damage was foreseeable, which is related to or caused by:
(a) reason of delay in delivery of any Services including the failure to achieve any dates specified in this Agreement, whatever the cause of the delay;
(b) circumstances beyond the control of Flight Digital including, without limitation, war, civil disturbance, acts of terrorism, natural disasters, strikes, or the failure of a third party supplier approved by the Client to provide services to the level, quality or continuity required by Flight Digital;
(c) any computer virus accidentally introduced to the Client’s computer system;
(d) any third party act or attempt to:
(i) gain unauthorised access to any portion or feature of any website or interface developed by Flight Digital;
(ii) obtain any materials, information or documents through any electronic means developed by Flight Digital which was not purposely made available by the Client to that party, including without limitation, hacking, password mining or otherwise accessing any electronic information system without authorisation;
(iii) test the vulnerability of the information systems developed by Flight Digital or any network connected to those information systems;
(iv) upload or use any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any Client electronic system;
(v) use any Client system in any unlawful manner or in any other manner that could damage, disable, overburden or impair the system;
(vi) use automated scripts to collect information from or otherwise interact with the Client’s systems.
10.3 Business Purposes: The Client agrees that to the extent that Services are for business purposes all provisions of the Consumer Guarantees Act 1993 are excluded to the maximum extent allowed under section 43(2) of that Act and that it is fair and reasonable for the parties to be bound by this clause.
10.4 Fair Trading Act: For the purposes of section 5D of the Fair Trading Act 1986, the parties acknowledge and agree that, to the maximum extent permitted by law:
(a) the Services are being provided and acquired in trade;
(b) in respect of all matters covered by this Agreement, the parties are contracting out of sections 9, 12A and 13 of the Act; and
(c) it is fair and reasonable for the parties to be bound by this clause.
10.5 Limitation of Liability: Without restricting any other provision of this Agreement which limits or excludes liability to the Client, any claim which the Client may have against Flight Digital, whether in contract, tort (including negligence) or otherwise as a result of the Services shall be limited, at the option of Flight Digital, to either:
(a) Flight Digital remedying any defect by providing additional Services at its cost; or
(b) the amount paid by the Client to Flight Digital in respect of the defective Services.
10.6 Client Indemnity: Without limiting any rights or remedies of Flight Digital, the Client indemnifies Flight Digital, as a continuing indemnity, against all costs, losses, liabilities, claims, demands, damages, fines, and penalties of or incurred by Flight Digital arising directly or indirectly out of, or in connection with, any breach of this Agreement (including the warranties in clause 8.1) by the Client and any third party actions, claims or demands arising in connection with the provision of the Services. The indemnity in this clause includes any circumstance where the Client fails to properly secure or otherwise arrange for any necessary licenses in respect of any Third Party Materials and fails to obtain the necessary rights, releases or permissions.
- SUSPENSION AND TERMINATION
11.1 Suspension: If the Client does not comply with any of its obligations under this Agreement, including paying any amount when that is due, Flight Digital may by written notice immediately suspend performance of its obligations under this Agreement until such time as Flight Digital is of the opinion that the Client has satisfactorily performed all of its obligations.
11.2 Flight Digital Right to Terminate: Flight Digital may immediately terminate this Agreement by written notice to the Client if any invoice issued is not paid when due, and for the avoidance of doubt any additional time Flight Digital allows a Client to pay shall not prejudice its right to terminate under this clause at any time;
11.3 Client Right to Terminate: The Client may immediately terminate any Defined Project at any time by written notice to Flight Digital. Notwithstanding the termination of the Defined Project, the Client will remain liable to Flight Digital for all Services provided by it up to the date of termination.
11.4 Either Party Termination: This Agreement may be terminated immediately upon written notice by any party if:
(a) a Final Budget for a Defined Project is not agreed under clause 3;
(b) the other party becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors or goes into receivership or liquidation; or
(c) the other party breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach if the material breach is capable of remedy.
11.5 Consequences of Termination: On the termination or expiry of this Agreement:
(a) the Client shall return all Working Documents in its possession or control to Flight Digital;
(b) the Client shall pay Flight Digital:
(i) for all Services to the date of termination at the rates specified in the Ratecard
(ii) Flight Digital ’s estimate of staff time at the costs specified in the Ratecard for work Flight Digital forecasts would be carried out in the four weeks following any termination notice as liquidated damages and which the parties agree is a reasonable pre estimate of the loss suffered by Flight Digital for the loss of billable production space; plus
(iii) all third party costs and commitments that are not able to be cancelled.
(c) any deposits and other amounts paid by the Client (including the amount described in clause 11.5(b)) are non-refundable and to the extent that any amount received by Flight Digital does not relate to Services provided the parties agree that amount is a reasonable pre estimate of the loss suffered by Flight Digital and is compensation to cover lost production space;
(d) nothing shall affect any rights accrued or obligations owing as at the date of termination or expiry;
(e) this clause and clauses 4.5, 8, 9, 10, 11, 12 and 15.7 to 15.9 and all other provisions of this Agreement that are expressed to, or intended by the parties to, continue in full force and effect will do so.
- RESTRAINT OF TRADE
12.1 Covenants: In consideration for Flight Digital agreeing to provide the Services the Client covenants with Flight Digital that for a period of 24 months from the end of this Agreement that the Client will not on its own account or as an agent of any person:
(a) acquire goods or services from any person who supplied goods or services to Flight Digital for the purpose of delivering the Services;
(b) solicit or entice any of the employees or contractors of Flight Digital to terminate their employment or contract with Flight Digital.
12.2 Waiver: The provisions of this clause may from time to time be waived in writing in whole or in part by Flight Digital either with or without conditions. To the extent of any such waiver and on compliance with such conditions (if any) the Client concerned will be relieved of their obligations under this clause.
12.3 Severability: While the covenants contained in clause 12.1 are considered by the parties to be reasonable in all circumstances if one or more should be held to be invalid as an unreasonable restraint of trade or for any other reason whatsoever but would have been held valid if part of the wording thereof had been deleted or the period thereof reduced or the range of activities or area dealt with thereby reduced in scope such covenants shall apply with such modifications as may be necessary to make them valid and effective.
12.4 Injunction: Irreparable damage may result to Flight Digital in the event of a breach of clause 12.1 and in such event Flight Digital shall be entitled, in addition to any other remedy available to an injunction to restrain any breach or reasonably anticipated breach by the Client.
13.1 Negotiations: If a dispute arises between the parties in relation to this Agreement, then the parties shall endeavour to resolve the dispute by agreement between them through good faith negotiations and discussions.
13.2 Mediation: If the dispute is not resolved within ten Business Days of the date on which the parties in dispute commenced negotiations, then either party may, by written notice to the other party, refer the dispute to mediation in accordance with the following provisions:
(a) The mediator will not be acting as an expert or arbitrator.
(b) The mediation shall be conducted by a mediator agreed by the parties or, if they fail to agree on a mediator within five Business Days of the reference of the dispute to mediation, the mediator will be appointed by the President for the time being of the New Zealand Law Society or his or her nominee.
(c) The mediation shall be conducted in terms of the LEADR New Zealand Inc. Standard Mediation Agreement.
(d) The costs of the mediator shall be borne equally by the parties.
13.3 Other remedies: A party to a dispute will only be entitled to pursue other remedies available to it at law or otherwise, if the parties have failed to resolve the dispute within four weeks after commencement of the mediation.
13.4 Interlocutory relief: Nothing in this clause will prevent either party, at any time, from seeking any urgent interlocutory relief from a court of competent jurisdiction in relation to any matter that arises under this Agreement.
- PERSONAL INFORMATION
14.1 Authorities: The Client authorises Flight Digital (or Flight Digital’s agents) to:
(a) access, collect, retain and use any information about the Client (including any overdue fines balance information held by the Ministry of Justice) for the purposes of assessing the Client’s creditworthiness or marketing products and services to the Client; and
(b) disclose information about the Client, whether collected by Flight Digital from the Client directly or obtained by Flight Digital 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 the Client.
14.2 Individual: Where the Client is an individual, the authorities under clause 14.1 are authorities or consents for the purposes of the Privacy Act 1993.
14.3 Disclosure and Correction Rights: The Client shall have the right to request Flight Digital for a copy of the information about the Client retained by Flight Digital and the right to request Flight Digital to correct any incorrect information about the Client held by Flight Digital.
15.1 Entire Agreement: This Agreement, the Proposal and the Project Charter represents the whole or entire agreement between Flight Digital and the Client relating to the provision of the Services.
15.2 Conflict of Terms: If there is any conflict between the Special Terms and the General Terms, the Special Terms have effect. If there is any conflict between the Proposal (outside of the Special Terms) and the General Terms, the General Terms have effect.
15.3 Assignment: Flight Digital may, in its absolute discretion, assign or transfer all or any part of its rights and/or obligations under this Agreement without obtaining the Client’s prior approval. The Client must not assign or transfer all or any of its rights and/or obligations under this Agreement without obtaining Flight Digital’s prior approval.
15.4 Subcontractors: Flight Digital may, in its absolute discretion, subcontract any of the Services without obtaining the Client’s prior approval.
15.5 No Set off: Payments required to be made by the Client under this Agreement shall be made in cleared funds and without any deduction or set off.
15.6 Amendments: No amendment of this Agreement will be effective unless it is in writing and signed by both parties.
15.7 No Partnership: Nothing in this Agreement or in the relationship between the parties to this Agreement shall be construed as creating a partnership or as giving to any party to this Agreement any of the rights or subjecting any party to any of the liabilities of a partner.
15.8 Promotion Rights: Flight Digital retains the right to photograph, reproduce, publish and display the Deliverables, the Project and the Client’s name and logo in Flight Digital’s portfolios and websites, and other media or exhibits for the promotion of Flight Digital ’s business.
15.9 Confidential Information: Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party (Confidential Information). Each party, shall 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 this Agreement. Upon termination of this Agreement each party shall return or if requested destroy, the other party’s Confidential Information.
15.10 Costs: Flight Digital may recover from the Client any all costs incurred by it enforcing the provisions of this Agreement, including debt collection costs and any legal costs as between solicitor and client on an indemnity basis.
15.11 Conflict: The Client agrees that this Agreement takes precedence over any terms imposed by Client, whether before or after entry into this Agreement.
15.12 Exclusivity: Flight Digital reserves the right, to work for or accept retainers from any other parties which compete directly or indirectly with the Client’s business, unless specified otherwise in the Special Terms or Proposal.