Current as at 16/07/2009
A. Customer wishes Rhythm IT to provide Services.
B. Customer will pay Rhythm IT for these services.
1. Sales of Services:
1.1. The customer will from time to time after the Commencement Date commission Rhythm IT to perform Services for it. The Services may include (among other things) consultation services, software development services and software technical/support consultation services, and any necessary associated Documentation, in accordance with a Service Engagement agreed between the parties.
2. Customer’s responsibilities:
2.1. To facilitate the provision of the Services, Customer will:
(a) Work with Rhythm IT to scope Projects and/or ad-hoc services.
(b) Cooperate with Rhythm IT to allow Rhythm IT to design, supply, deliver, install and/or commission the Projects and/or ad-hoc services.
(c) Give Rhythm IT access to the relevant documentation, personnel, systems and related materials for the purposes of Rhythm IT providing the Services.
3.1. Any changes in or to the scope of other elements of Projects as set out in the Service Engagement must first be agreed in writing by the parties. Any alterations to the work will be charged as an extra unless expressly agreed to in writing.
4.1. Rhythm IT will supply Customer with up-to-date copies of all Documentation as required in a Services Engagement.
5. Pricing and Payment Terms:
5.1. In consideration of Rhythm IT undertaking to perform the Services, the Customer will pay to Rhythm IT:
(a) The amounts set out in the Services Engagement or quotation for services.
(b) The sum of hours worked multiplied by an hourly rate as agreed to in a Services Engagement.
5.2. Rhythm IT will charge for any additional services which are not directly contemplated by the Agreement, but which the parties have agreed will be provided at, at the rates set out in the relevant Services Engagement.
5.3. Any deposit required by Rhythm IT is payable immediately and is non-refundable.
5.4. The customer will pay to Rhythm IT GST (where applicable) and other taxes and duties (if any) except when such taxes are expressly included in any estimate given by Rhythm IT.
5.5. Rhythm IT will invoice for Services monthly in arrears and Customer will pay the Fees for the services set out in the relevant Services Engagement.
5.6. Payment in full is due by the 20th of the month following the date of an invoice.
5.7. Rhythm IT may at its discretion impose a limit on the amount of credit available to Customer.
5.8. If the Customer defaults in payment of any moneys payable, Rhythm IT may at its discretion impose an interest penalty on the unpaid moneys. The interest rate will be set out in the list of charges agreed to in the Service Engagement. If no interest rate is set out in the list of charges, a default interest rate of 10% per month will apply.
5.9. If an account is not paid within thirty days after the due date, the account may be referred to our debt recovery agency and we may charge you a default fee of up to 25% of the unpaid portion of the price (but not less than $25.00) to cover our legal and recovery costs.
5.10. Payment of any moneys owing shall be made free of any counterclaim, set off, deduction or other claim whatsoever.
5.11. Ownership of any Intellectual Property does not pass to Customer until payments have been made in full.
6.1. Where applicable, customer will conduct Acceptance Testing on Projects or other works, in accordance with the Service Engagement.
6.2. If a Project does not pass Acceptance Testing, then:
(a) Customer must notify Rhythm IT of the ways and extent to which the Project failed the acceptance testing; and
(b) Rhythm IT will modify the Project so that it will pass the Acceptance Testing;
(c) Customer will re-perform Acceptance testing in the event that the Project did not pass in the initial Acceptance Testing, on the same basis as the initial Acceptance Testing was carried out. This re-performance of the Acceptance Testing must be conducted no later than 14 days after receipt of the modified Project from Rhythm IT.
6.3. If the Project passes the Acceptance Testing, the Customer will advise Rhythm IT in writing within 48 hours of the conclusion of the Acceptance Testing.
7. Intellectual Property:
7.1. Subject to clauses 7.2 and 7.3, all Deliverables will be owned by Customer.
7.2. Where the Services include work on Customer Software, Enhancements, New Releases and related Documentation, subject to clause 8.3, all rights and powers arising out of the creation of Customer Software, Enhancements, New Releases and related Documentation by Rhythm IT, (including all Intellectual Property Rights) will be owned by the Customer upon the payment of the Fees in full for such Customer Software, Enhancements, New Releases and Documentation (whether or not the development has been completed). Rhythm IT will not do anything which is inconsistent with or in derogation of such ownership. Rhythm IT will co-operate with the Customer and sign all instruments and do everything necessary to enable the Customer to fully protect, realise and use the Customer Software, Enhancements, New Releases and Documentation.
7.3. Clauses 7.1 and 7.2 do not apply to any:
(a) Code, know-how, specifications, models ideas, techniques and concepts used by Rhythm IT or acquired or developed by Rhythm IT during the course of the Project provided the above has not been developed specifically for Customer (“Background Technology”);
(b) Rhythm IT Software; or
(c) Third-party Intellectual Property Rights.
7.4. Once payment has been received in full, Rhythm IT agrees to grant to Customer a non-exclusive, perpetual, irrevocable, royalty-free license to use the Background Technology included in any Deliverables solely in conjunction with the Deliverables. All third-party Intellectual Property Rights will be subject to the relevant third-party license terms.
7.5. Rhythm IT covenants with the Customer that in the provision of the Services Rhythm IT will not knowingly use any code or other materials which infringe any patent, copyright, trade secret or other proprietary right of any third party provided that the Deliverables may include third party code or other materials that Rhythm IT advises are included in such Deliverables and which are subject to the licence requirements set out in clause 7.3.
7.6. Rhythm IT undertakes to take all necessary action to defend and indemnify Customer against all costs, expenses and damages reasonably incurred in connection with any claim by a third party that any Deliverables infringe the Intellectual Property Rights of a third party, provided that this indemnity will not apply to any Deliverable:
(a) Produced or combined by Rhythm IT in accordance with express instructions of Customer;
(b) Provided to Rhythm IT by Customer.
7.7. Customer undertakes to take all necessary action to defend and indemnify Rhythm IT against all costs, expenses and damages reasonably incurred in connection with any claim by a third party that:
(a) Source Code and other materials provided by Customer to Rhythm IT; or
(b) Source Code or other materials produced or combined by Rhythm IT in accordance with express instructions of Customer,
Infringe the Intellectual Property Rights of a third party.
7.8. The obligations under the preceding provisions of this clause 7 will survive termination of this Agreement.
8.1. Rhythm IT will perform its obligations under the Agreement by use of techniques, methodologies and processes to the best of its abilities in accordance with good industry practice and ensure that all its personnel performing Services under this Agreement are suitably qualified and have the requisite skills, expertise and experience to perform the Services they perform.
8.2. Rhythm IT does not warrant that the Services, Deliverables or any other materials developed or provided by Rhythm IT pursuant to this Agreement will completely meet Customer’s requirements.
8.3. If Rhythm IT writes functional specifications for Customer as part of the Services, Rhythm IT warrants during the Warranty Period that any Customer Software, Enhancements and New Releases developed by Rhythm IT pursuant to such functional specifications will function substantially in accordance with those functional specifications. Rhythm IT undertakes to indemnify the Customer against all costs, expenses and damages incurred by the Customer in connection with any claim by any other person for breach of this warranty, to a maximum of the fees paid for the contracted work.
8.4. If Rhythm IT provides development services to Customer, it does not warrant that operation of the Customer Software, Enhancements and New Releases developed by Rhythm IT pursuant to this Agreement will be uninterrupted or error free. Customer acknowledges that the Customer Software, Enhancements and New Releases developed by Rhythm IT pursuant to this Agreement is of a complicated and technical nature and may have minor or inherent defects. Without limiting the foregoing, Rhythm IT will not be liable for any failure of Customer Software, Enhancements or New Releases developed by Rhythm IT pursuant to this Agreement if alterations to the Customer Software, Enhancements or New Releases, or the operating environment have been made by any person other than Rhythm IT, unless such alterations have been made with Rhythm IT’ prior written consent.
9.1. To the extent allowed by Law, Rhythm IT is not liable (in contract or in tort, including negligence) to Customer for any losses or costs (including legal costs) that may be incurred during the performance of this contact or thereafter.
9.2. Rhythm IT’ liability for any direct or any consequential losses shall at all times be limited to a maximum of the fees paid for the contracted work set out in the Services Engagement.
9.3. Customer undertakes to indemnify Rhythm IT against any
(b) Direct and/or indirect damage suffered;
(c) Loss or cost incurred (including legal costs) by Rhythm IT;
(d) Any claim or proceedings against Rhythm IT
That result from any act or omission on the part of Customer.
10. Failure to comply:
10.1. If payment in full of any amount under this contract is not made when due, or Customer breaches any of its other obligations to Rhythm IT, or an event of default occurs, then Rhythm IT may without prejudice to and in addition to any other rights or remedies available at law, exercise any or all of the following:
(a) Delay delivery of any project until the matter is resolved to Rhythm IT’ satisfaction;
(b) Suspend or cancel (in whole or part) the Services Engagement by written notice to Customer;
(c) Recover from Customer, or deduct from or set-off against any amount Rhythm IT may owe Customer, amounts for any damage, loss or cost (including legal cost) to Rhythm IT relating to the non-performance by Customer.
(d) Charge, and Customer must pay, interest at the rate set out in the Services Engagement. If no interest rate is set out in the list of charges, a default interest rate of 10% per month will apply.
(e) By notice to Customer require that all Customer’s indebtedness, whether or not due, is paid immediately and such amount will then become immediately due and payable.
11. Force majeure:
11.1. A party is not liable for any failure or delay in performing an obligation in this agreement if it is due to a cause reasonably beyond the control of that party and that party has used its best endeavours to perform on time despite the cause.
12. Use of Information:
12.1. Customer agrees that Rhythm IT and any members of Rhythm IT’ group of companies may use information about Customer, and obtain to use in their business, any information from Customer or any other person.
12.2. Customer consents to any person providing Rhythm IT with such information and Customer must notify Rhythm IT of any change in circumstances that may affect the accuracy of the information provided by Customer to Rhythm IT.
13. No assignment:
13.1. Customer may not directly or indirectly assign to any of its rights or obligations under these terms without the prior written consent of Rhythm IT.
14.1. No delay or failure to act shall constitute or be construed as a waiver by either party of that party’s rights and/or obligations.
15.1. Rhythm IT may rely on plans, specifications, information or quality and/or standard of any manufactured product used by Customer and has no liability whatsoever for loss or damage caused or contributed to by any act of Customer.
These terms of trade are subject to change without notice. An updated copy of these terms will be provided to clients upon request.