Master Service Agreement

Parties:

 

(1) Harper Plus Limited (company number 8658229) (Harper Plus).

 

(2) The client listed in the Schedule (Client).

 

  1. Definitions

 

1.1 In this Agreement, the following expressions shall have the following meanings:

 

“Agreement” This agreement and any schedules.

 

“AMINZ” The Arbitrators’ and Mediators’ Institute of New Zealand Inc., an

incorporated society in New Zealand with registered number 379524.

 

“Harper Plus Works” The part of the Software that has been developed by Harper Plus as part of the Services, and which does not contain any Third Party Works.

 

“Business Days” Any day (other than a Saturday, Sunday or public holiday, as that term is defined in section 5(1) of the Holidays Act 2003) on which registered banks are open for general banking business in Auckland, New Zealand.

 

“Change Request Form” A form provided by Harper Plus to the Client specifying the changes to the Services from any SOW and any amendments to Fees.

 

“Commencement Date” The commencement date set out in the Schedule.

 

“CPI” The consumer price index published by the New Zealand Department of Statistics (or, if that index is discontinued, any reasonably equivalent official index which replaces that index).

 

“Default Rate” 7% per annum, calculated daily and compounding monthly.

 

“Dispute” Any dispute arising under or relating to this Agreement.

 

“Documentation” The reports, instructions and/or operational manuals relating to the Software produced by Harper Plus.

 

“Excluded Code” Any source code, object code, standard patterns, processes, adopted frameworks and/or research copyright from Harper Plus’s own code library

that constitutes generic, reusable functions and subroutines that form part of its core services and that are not unique in respect to the Services provided to the Client pursuant to this Agreement.

 

“Fees” All fees, charges and expenses payable to Harper Plus in connection with the Services, as set out in this Agreement and any SOW.

 

“Force Majeure Event” The occurrence of an event after the Commencement Date that is beyond the reasonable control of a Party which cannot reasonably be avoided or overcome by that Party and which is not attributable to the actions of that Party, including:

  1. cyber warfare, cyber attacks, ransomware attacks or cyber sabotage;
  2. war, invasions, acts of foreign enemies or civil war;
  3. rebellion, terrorism, revolution, insurrection, military or usurped power or riots;
  4. operation of the forces of nature such as earthquakes, hurricanes, lightning, typhoons or volcanic activity;
  5. outbreaks of disease, epidemics or quarantine;
  6. instances of exceptionally adverse weather; and
  7. acts of government authority, whether lawful or unlawful.

 

“Intellectual Property” All intellectual property, proprietary and industrial rights (whether existing in statute, at common law or in equity), including:

  1. all copyright (including in source code, object code and machine code), circuit layouts, know-how, trade secrets, methods (including business methods), technical and non-technical information, processes, characteristics, formulae, patents, design rights, inventions and discoveries (whether patentable or not);
  2. all allied, similar and associated rights, whether registered or unregistered, registrable or unregistrable; and
  3. all applications for any of the foregoing rights, but excluding (in all cases) the Excluded Code and Third Party Works.

“Location” The Client’s location at which the Services will be provided, as set out in the relevant SOW.

 

“Outline Specification” The outline specification set out in the relevant SOW, describing the intended functionality of the Software.

 

“Prototype” A prototype of the Software based on the Outline Specification, as described in the relevant SOW.

 

“Schedule” The schedule to this Agreement and any variations of or updates to the schedule.

 

“Services” The services provided by Harper Plus pursuant to this Agreement, including the development work required to produce the Prototype and/or Software to conform to the Outline Specification, systems training and demonstrations, development of the Documentation and any other related services as specified in the relevant SOW.

 

“Software” The software developed by Harper Plus in the provision of the Services,

consisting of any combination of Harper Plus Works and Third-Party Works.

 

“SOW” A statement of work, signed by both parties, that sets out the Services to be provided for a specific project, the duration of those Services, the relevant Fees and any other agreed matters relating to those Services.

 

“Term” The term of this Agreement, as set out in the Schedule.

 

“Third Party Works” That part of the Software that is owned by a third party, as described in the relevant SOW.

 

“Timetable” The timetable within which the Services are proposed to be delivered, as set out in the relevant SOW.

 

“Warranty Period” The period that is 14 calendar days from the date the Prototype and/or Software (as relevant) is accepted or deemed to be accepted in accordance with clauses 8 and 9.

 

  1. Term

 

2.1 The Agreement shall commence on the Commencement Date and shall automatically terminate at the end of the Term unless the parties agree otherwise.

 

2.2 The parties may agree in writing to extend the Term but confirm that there is no expectation of any such extension.

 

  1. Services

3.1 Harper Plus shall perform the Services for the duration of the Term, at the Location and in accordance with any SOW.

 

3.2 If there is any conflict or inconsistency between this Agreement and any SOW, the provisions of the relevant SOW shall prevail to the extent of that conflict or inconsistency.

 

3.3 Harper Plus shall use reasonable endeavours to perform the Services in accordance with the Timetable in the relevant SOW.

 

3.4 Harper Plus may, at any time, request instructions (including written instructions) from the Client within a reasonable period prior to taking action with respect to any matter contemplated by this Agreement or any SOW, and may defer

taking action thereon pending receipt of such instructions. The Client shall promptly respond to any such request. Actions taken by Harper Plus in accordance with the Client’s instructions shall constitute proper conduct within the scope of Harper Plus’s authority under this Agreement and any SOW.

 

  1. The Client’s Obligations

 

4.1 The Client accepts that it is entirely responsible and liable for:

(a) engaging with Harper Plus to design and finalise each Outline Specification;

(b) providing all necessary information to Harper Plus and responding to Harper Plus’s requests for further

information and/or clarification in a timely manner;

(c) verifying that the Services are suitable for its own needs; and

(d) raising any concerns relating to the Services with Harper Plus as soon as  reasonably practicable.

 

  1. Harper Plus’s Obligations

 

5.1 In its performance of the Services, Harper Plus will:

(a) exercise due care and skill;

(b) provide the equipment, materials and resources necessary for the provision of the Services, except where agreed otherwise with the Client in any SOW; and

(c) provide to the Client, and/or make itself available to discuss, all information in relation to the Services as soon as reasonably practicable following any reasonable written request by the Client.

 

  1. Delays

 

6.1 Except in the case of a Force Majeure Event, if there is a delay in the completion of the Services as a result of the failure of the Client to fulfil its obligations under this Agreement or any SOW then, in addition to the Fees, Harper Plus will be entitled to charge the Client for any costs and expenses it incurs as a result of the delay.

 

  1. Force Majeure

 

7.1 Neither party shall be liable to the other, or be deemed to be in breach of this Agreement or any SOW, as a result of any delay or failure to perform its obligations due to any Force Majeure Event, provided that it:

(a) takes all reasonable steps to perform its obligations and/or alleviate the delay; and

(b) provides written notice of the nature and extent of the Force Majeure Event and the likely delay to the other party as soon as reasonably practicable.

 

7.2 If a Force Majeure Event continues for more than 30 Business Days then:

(a) either party may terminate this Agreement and each and any SOW by giving the other party no less than 10 Business Days’ written notice; or

(b) the parties may agree in writing to suspend all or any of their obligations under this Agreement and any SOW.

 

7.3 This clause 7 shall cease to apply in respect of a Force Majeure Event when:

(a) that Force Majeure Event no longer has any effect on the performance of the party’s obligations in this Agreement and any SOW; and

(b) that party has given written notice to the other party that the Force Majeure Event has ceased.

 

  1. Prototype

 

8.1 Where a SOW expressly states that a Prototype will be required, Harper Plus shall carry out such development work as required to complete and deliver the Prototype and shall give a demonstration of the Prototype to the Client.

 

8.2 The Client shall have 5 Business Days from the demonstration of the Prototype in which to request any changes to the Prototype, and such requests must be made in writing. If the Client does not do so within this period it shall be deemed to have accepted the Prototype in its entirety.

 

8.3 To the extent that any changes to the Prototype are requested in writing by the Client that are not specifically within the scope of the relevant Outline Specification, then Harper Plus shall submit a Change Request Form in relation to such changes to the Client.

 

8.4 If the Change Request Form is not approved then the Client may either:

(a) request that Harper Plus proceed with the relevant SOW based upon the original Prototype delivered to the Client in accordance with clause 8.1; or

(b) terminate the relevant SOW with immediate effect on giving written notice of such termination to Harper Plus, at which point the Fees due to Harper Plus under that SOW will become immediately due and payable in full.

 

8.5 Where changes to the Prototype are requested and agreed in writing by the parties, Harper Plus shall deliver the amended Prototype to the Client for approval and the provisions of this clause 8 shall again apply to that amended Prototype.

 

  1. Software

 

9.1 Prior to delivery of the Software the parties shall agree in writing a set of objective acceptance tests to be passed by the Software and the timetable for carrying out those acceptance tests. If no such tests have been so agreed by the date of delivery of the Software as set out in the relevant SOW, and Harper Plus considers that the Software has no major issues following its functional and integration testing, Harper Plus will deem the system to have passed acceptance testing.

9.2 Harper Plus shall carry out such development work as required to complete the Software and the Documentation and shall deliver the Software to the Client for acceptance testing.

 

9.3 Within 5 Business Days of the Software being delivered to the Client (or any longer period agreed in writing by the parties in accordance with clause 9.1), the Client shall perform the acceptance tests on the Software.

 

9.4 If the Software passes the acceptance tests the Client shall notify Harper Plus in writing of this fact, at which point the Client shall be deemed to have accepted the Software.

 

9.5 If the Software fails one or more of the agreed acceptance tests the Client shall notify Harper Plus in writing of such failure. The Client shall give Harper Plus as much detail as possible about the circumstances of the failure in order to help Harper Plus correct the fault in the Software.

 

9.6 If Harper Plus does not receive written notification of a failure or success within 10 Business Days of the date on which it delivered the Software to the Client (or any longer period agreed in writing by the parties in accordance with clause 9.1), the Client shall be deemed to have accepted the Software in full.

 

9.7 If Harper Plus receives written notification of a failure in accordance with clause 9.5, then it shall use reasonable endeavours to make the necessary changes to the Software as soon as reasonably practicable and shall redeliver the Software to the Client for accepting testing and the provisions of this clause 9 shall once again apply to the revised Software.

 

9.8 If the Software is redelivered for acceptance testing on three or more occasions and, on each occasion, the Software fails to pass the agreed acceptance tests then the Client shall be entitled to reject the Software and terminate this Agreement by giving written notice to Harper Plus within 5 Business Days of such failure. On any such termination the Client shall return the Software and Documentation to Harper Plus and, as the Client’s sole and exclusive remedy, Harper Plus shall return to the Client all Fees paid to it by the Client for the Software during the immediately preceding 12 months. Harper Plus may require the Client to provide proof that all copies of the Software and Documentation have been returned or deleted from the Client’s systems prior to any refund being paid.

9.9 Irrespective of the above, if the Client uses the Software (except for testing purposes) the Software shall be deemed to have been accepted on the date of such first use.

 

  1. Warranties

 

10.1 Except as specified in clause 10.2, Harper Plus warrants that the Software shall conform with the Outline Specification in all material respects for the Warranty Period.

 

10.2 Harper Plus provides no warranties in relation to Third Party Works.

 

  1. Viruses, Bugs, Errors and Security

 

11.1 The Client acknowledges and agrees that computer programs are not error-free and that the existence of bugs and errors in the Software shall not constitute a breach of this Agreement or any relevant SOW.

 

11.2 If the Client discovers a material error in the Software which substantially affects the use of the Software and notifies Harper Plus in writing of the error within the Warranty Period, Harper Plus shall, at its sole option, either refund the Fees (in full or part) paid by the Client pursuant to the Agreement or use all reasonable endeavors to correct the error provided that the error has not been caused by:

(a) any modification, variation or addition to the Software not performed by Harper Plus;

(b) the incorrect use or corruption of the Software; or

(c) use of the Software in a manner or in conjunction with products not envisaged by the Outline Specification;

(d) any malicious activity; or

(e) incorrect specification where the Software has been accepted but the requirements have subsequently changed and the Client no longer considers the Software fit for purpose.

 

11.3 Harper Plus shall use reasonable endeavours to check the Software for the most commonly known viruses and security vulnerabilities at the time of delivery to the Client under the relevant SOW. However, it remains the sole responsibility of the Client to ensure the security of the Software.

 

  1. Intellectual Property

 

12.1 Subject always to clauses 12.2 and 12.3, and the payment of Fees in full, Harper Plus agrees that all Intellectual Property that is created by Harper Plus in connection with the Services shall be and remain owned by the Client.

 

12.2 The parties agree that:

(a) all Excluded Code shall be and remain solely owned by Harper Plus; and

(b) all Third Party Works shall be and remain solely owned by the relevant owner of such works.

 

12.3 To the extent that any Excluded Code is:

(a) used by Harper Plus in connection with the Services; or

(b) otherwise incorporated into or provides a platform for any Services, then Harper Plus grants to the Client a worldwide, non-exclusive licence to use, reproduce, exploit, modify, alter or integrate the Excluded Code.

 

12.4 Where the Software or Prototype includes any Third-Party Works, Harper Plus may require the Client to enter into a direct licence with the owner of the Third Party Works for the use of those works.

 

12.5 The Client agrees to take all actions as may be reasonably required by Harper Plus (at Harper Plus’s cost) to perfect or enforce Harper Plus’s title to the Excluded Code, which shall include executing and delivering any document required in order to perfect or enforce such title (including, for the avoidance of doubt, a deed of assignment of intellectual property).

 

12.6 The parties agree that the provisions of this clause 12 shall survive the termination of this Agreement.

 

  1. Fees

 

13.1 In consideration for provision of the Services, the Client will pay the Fees to Harper Plus as specified in the Schedule and any relevant SOW.

 

13.2 The Fees may be adjusted by Harper Plus for each calendar year during the Term, by giving written notice to the Client not later than 20 Business Days prior the start of that calendar year, by an amount equal to the percentage increase in the CPI over the calendar year immediately preceding the relevant review of the Fees. Such adjustment shall be deemed to have effect on and from the start of that calendar year.

 

13.3 The Client will reimburse Harper Plus for all expenses reasonably incurred by Harper Plus in performing the Services, provided that:

(a) the Client has approved the scope or details of any such expense; and

(b) Harper Plus produces all relevant receipts to the Client in respect of such expenses.

 

13.4 Harper Plus will provide invoices to the Client for Fees in the manner specified in the Schedule and any relevant SOW.

 

13.5 If there is a dispute relating to any invoice issued by Harper Plus:

(a) the Client must promptly notify Harper Plus in writing of this fact, clearly setting out the reasons for the dispute;

(b) the Client must pay any undisputed balance of an invoice; and

(c) if the Client does not dispute an invoice within 10 Business Days of receipt, it will be deemed to have accepted the invoiced amount in full.

 

13.6 If a sum required to be paid by the Client under this Agreement or any SOW is not paid to Harper Plus on the due date, the Client shall also pay interest on that sum at the Default Rate for the period beginning on the due date and ending on the date that the sum is paid by the Client.

13.7 Debt Recovery and Legal Costs:
If the Client fails to make payment by the due date, the Client agrees to pay all costs incurred by Harper Plus in recovering the outstanding amount. This includes, but is not limited to, debt collection agency fees, court filing costs, and solicitor/client legal fees.

 

  1. Dispute Resolution

 

14.1 The parties must use reasonable endeavours to resolve any and all Disputes by good faith negotiations. If a Dispute is settled at or following negotiations under this clause 14 such settlement shall be recorded in writing and be signed by the parties, whereupon it shall be final and binding on the parties.

 

14.2 If the parties cannot resolve their Dispute by negotiations under clause 14.1 within 10 Business Days, a party may, by written notice to the other party, require that the Dispute be dealt with by mediation under the following terms:

(a) the mediation shall be conducted in accordance with the Mediation Protocol of AMINZ then in force (or any protocol or mediation agreement which replaces it);

(b) the mediation shall be conducted by a mediator and at a fee jointly agreed in writing by the parties. Failing agreement between the parties within 10 Business Days of the giving of the notice requiring mediation, the mediator will be selected and his or her fee determined by the chairperson for the time being of AMINZ (or his or her nominee);

(c) the mediation shall take place in Auckland, New Zealand at such address as determined by the mediator;

(d) if the Dispute is settled at or following mediation under this clause 14.2, such settlement shall be recorded in writing and be signed by the parties, whereupon it shall be final and binding on the parties; and

(e) the costs of the mediation, excluding the parties’ own legal and preparation costs.

 

14.3 No party may initiate or commence proceedings relating to a Dispute unless it has complied with the procedure set out in this clause 14 provided that application may still be made to the courts:

(a) for interlocutory relief;

(b) to recover a debt payable; or

(c) to enforce a settlement agreed to by the parties under clause 14.1 or 14.2.

 

  1. Termination

 

15.1 Harper Plus may terminate this Agreement at its discretion with four weeks written notice to the Client. Harper Plus shall not be required to complete any further work beyond termination of such notice period.

 

  1. Assignment and Subcontracting

 

16.1 Harper Plus may assign, transfer or subcontract its rights or obligations under the Agreement in accordance with usual business practice without the client’s prior written consent.

 

  1. Indemnity

 

17.1 Each party hereby indemnifies, and will keep indemnified, the other party from and against any and all losses, damages, costs, actions, proceedings, claims and demands which that party may incur or be subject to that arise out of or as a consequence of:

(a) any breach by the other party of any term of this Agreement or any SOW; and/or

(b) any negligent or wrongful act, omission or default of the other party.

 

17.2 Harper Plus shall not be liable for any loss or damage arising from loss of data from the Client’s computer systems and the Client indemnifies Harper Plus against any third party claims which arise from loss of data.

 

17.3 The indemnities provided under this clause 17 will continue to apply after the termination of this Agreement.

 

  1. Limitation of liability

 

18.1 The maximum aggregate liability arising under or in connection with this Agreement and all SOWs, whether arising in

contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation or otherwise, shall in all circumstances be limited to:

(a) in the case of Harper Plus, the Fees received from the Client under this Agreement and all SOWs; and

(b) in the case of the Client, the Fees paid to Harper Plus under this Agreement and all SOWs.

 

18.2 Neither party shall be liable to the other for any indirect, consequential or special loss or damage, loss of revenue, economic loss or damage, loss of business or profits or anticipated business or profits, loss of goodwill, loss of anticipated savings or for any business interruption, whether or not that loss was, or ought to have been, contemplated by the party in breach.

 

  1. General Provisions

 

19.1 This Agreement, and all SOWs, constitute the entire agreement and understanding of the parties relating to the matters dealt with in this Agreement and supersedes and extinguishes any previous agreement (whether oral or written) between the parties in relation to such matters. Nothing in this clause 19.1 operates to limit or exclude any liability for fraud.

 

19.2 The parties each warrant and represent that:

(a) they have full power and authority to enter into this Agreement;

(b) all authorisations and approvals that are necessary or required in connection with the execution of this Agreement, and the assumption of rights and obligations under it, have been obtained or effected; and

(c) the execution, delivery and performance of this Agreement does not constitute a breach of any law or obligation and will not cause or result in any default or breach under any other agreement or arrangement by which it is bound and which would prevent it from entering into or performing its obligations under this Agreement.

 

19.3 All sums payable under this Agreement must be paid:

(a) in New Zealand dollars;

(b) in cleared funds;

(c) into the bank account specified in writing by the recipient of the payment; and

(d) free and clear of any restriction, condition, set-off, deduction or withholding (except as required by law).

 

19.4 No party will be deemed to have waived any right under this Agreement unless the waiver is in writing and signed by that Party.

 

19.5 This Agreement may not be amended or varied in any way unless such amendment or variation is made in writing and signed by each party.

 

19.6 If any provision of this Agreement is found by a court or other competent authority to be void or unenforceable, such provision will be deemed to be deleted from this Agreement and the remaining provisions of this Agreement will continue in full force and effect.

 

19.7 Unless otherwise expressly provided in this Agreement, the rights and remedies set out in this Agreement are in addition to, and not in limitation of, any other rights and remedies under or relating to this Agreement (whether at law or in equity), and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.

 

19.8 No rule of construction (including the contra proferentem rule, applies to the disadvantage of a party because that party (or its relevant advisor) was responsible for the drafting of this Agreement or any part of it.

 

19.9 This Agreement may be executed and delivered in any number of counterparts, including by way of electronic transmission where a party signs a counterpart and sends it as a PDF to the other party by email. All such counterparts, when taken together, shall constitute one and the same instrument and, notwithstanding the date of execution, will be deemed to bear the Commencement Date.

19.10 A party may sign this Agreement, by way of the application of that party’s electronic signature in accordance with Part 4 of the Contract and Commercial Law Act 2017.

 

19.11 This Agreement, and any claims arising out of or in connection with it or its subject matter or formation (including non-contractual claims), will be governed by and construed in accordance with the laws of New Zealand and the parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand for any matter arising under or relating to this Agreement or its subject matter or formation or the relationships established by it (including non-contractual claims).