Terms & Conditions

01.1

The terms of this agreement (Agreement) comprise these Terms of Service, together with the terms of the Agreed WorkOrder

01.2

In the event of inconsistency between the terms of the Agreed Work Order and these Terms of Service, these Terms of Service shall prevail to the extent of the inconsistency except to the extent expressly provided otherwise.

02

Services

02.1

Standard of Services: Made Studio will perform the Services:

(a)
in accordance with the terms of this Agreement including the Agreed Work Order;
(b)
in a professional and courteous manner; and
(i)
as soon as reasonably practicable discuss the alleged non-conformity with you; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall use reasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
in compliance with all applicable laws.

02.2

Project milestones: Made Studio will use reasonable end eav ours to achieve any project milestones set out in the Agreed Work Order (if any), or any milestones that may otherwise be agreed in writing by the parties from time to time, provided that unless it is expressly agreed otherwise any such milestones are provided as estimates only and shall be treated accordingly

02.3

Communication and reporting: Made Studio will meet with you and provide you with such reporting and information in respect of the progress of the Services as may be agreed by the parties from time to time.

02.4

Client obligations: You agree to:

(a)
promptly respond to Made Studio and in event no later than two Business Days following, any request from Made Studio for clarification or design input in respect of any aspect of the Services or the Deliverables;
(b)
provide us with such information, co-operation and assistance as may be reasonably required to enable us to provide the Services and perform our obligations under this Agreement in a prompt and efficient manner; and
(i)
as soon as reasonably practicable discuss the alleged non-conformity with you; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall use reasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
provide, or make available to us, any personnel, facilities, premises, systems, equipment and other resources specified in the Agreed Work Order as to be provided by you.

03

Delays

03.1

Client Contributed Delays: The parties acknowledge and agree that if the Services are delayed as a direct or indirect result of any act or omission by you, or as a direct or indirect result of your breach of this agreement (a Client Contributed Delay), then:

(a)
the estimate date for completion of the relevant Services (if any) shall be extended as reasonably required by Made Studio to account for the Client Contributed Delay; and
(b)
notwithstanding clause 6 and without limiting Made Studio's other rights and obligations under this Agreement, Made Studio may adjust the Fees as reasonably required by Made Studio in consultation with you to account for the Client Contributed Delay.
(i)
as soon as reasonably practicable discuss the alleged non-conformity with you; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall use reasonable endeavours to correct any non-conformity at Made Studio's cost.

04

Delivery

04.1

Delivery: Made Studio shall deliver to you any Deliverables subject of the Services as described in the Agreed Work Order.

04.2

Acceptance of website design:

(a)
If website design services are applicable, then on completion of the relevant website design (as determined by Made Studio, acting reasonably) Made Studio shall provide the relevant design (Proposed Design) to you for your confirmation and sign-off.
(b)
If within 10 Business Days of receipt of the Proposed Design, you notify Made Studio in writing that the Proposed Design does not comply with any of the agreed requirements or specifications for that Deliverable set out in the Agreed Work Order, then Made Studio will:
(i)
as soon as reasonably practicable discuss the alleged non-conformity with you; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall use reasonable end eav ours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies with any of the agreed requirements or specifications set out in the Agreed Work Order
(d)
Once accepted (Agreed Design), if website development services are applicable, Made Studio shall perform such website development services in accordance with the Agreed Design.

04.3

Acceptance of website development work:

(a)
If website design services are applicable, then on completion of the relevant website design (as determined by Made Studio, acting reasonably) Made Studio shall provide the relevant design (Proposed Design) to you for your confirmation and sign-off.
(b)
If within 10 Business Days of receipt of the Proposed Design, you notify Made Studio in writing that the Proposed Design does not comply with any of the agreed requirements or specifications for that Deliverable set out in the Agreed Work Order, then Made Studio will:
(i)
as soon as reasonably practicable discuss the alleged non-conformity with you; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall use reasonable end eav ours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies with any of the agreed requirements or specifications set out in the Agreed Work Order

04.4

Acknowledgement: For the avoidance of doubt, any change to the agreed requirements or specifications of the Deliverable(including any change to the required functionality or content of the relevant Deliverable from that outlined in the Agreed Work Order, including the Agreed Design (if any)) or change to the scope of the Services shall not be considered to be anon-conformity for the purposes of clauses 4.2 and 4.3 and shall be managed in accordance with the Change Management Process.

05

Fees

05.1

You will pay us the Fees for the provision of Services pursuant to this Agreement as set out in the Agreed Work Order

05.2

Unless otherwise specified in the Agreed Work Order, the Fees are expressed as exclusive of GST but otherwise inclusive of all other taxes which may be imposed as a consequences of Made Studio's performance of the Services.

05.3

In addition to the Fees, you shall pay to Made Studio any reasonable expenses incurred by Made Studio in connection with its performance of the Services to the extent the relevant expense is prior approved by you (such approval not to be unreasonably withheld or delayed).

05.4

Unless otherwise specified in the Agreed Work Order, we shall invoice you on a monthly basis for Services performed during the preceding month.

05.5

All invoices submitted by us to you for the Services supplied by us pursuant to this Agreement will:

(a)
constitute a tax invoice for GST purposes; and
(b)
specify the Services supplied and the dates of supply
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

05.6

Unless otherwise specified in the Agreed Work Order, each invoice issued by us to you in accordance with this Agreement will be payable no later than the 20th of the month following the date of the invoice.

05.7

If you fail to pay any amount due to Made Studio under this Agreement by the relevant due date, you acknowledge and agree that Made Studio may:

(a)
charge interest on the overdue amount at the rate of 2% per annum until such time that the overdue amount is paid to Made Studio in full; and/or
(b)
suspend performance of the Services until all overdue amounts are paid. Made Studio will recommence the performance of such Services as soon as practicable after all overdue payment has been made.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

05.8

You may not:

(a)
deduct or withhold from the amount payable under an invoice any amounts for any tax or any other reason unless the with holding or deduction are required by law; and
(b)
set-off against or deduct from the amount payable under an invoice any amounts that are due to you by Made Studio.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

06

Change management

06.1

Change Request: If either party wishes to make any changes or variations to the Services, any Deliverable (including any Agreed Design) or any part of the Agreed Work Order, then the parties will comply with the change management process setout in this clause 6.

06.2

Initiating a change: If either party wants to initiate a change that party must:

(a)
first discuss the particular change with the other party; and
(b)
thereafter provide the other party with a written change request (Change Request) setting out a complete description of the required change and any other matters relevant to the request.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

06.3

Obligations in respect of a Change Request: As soon as reasonably practicable following receipt of a Change Request,the parties shall meet to discuss in good faith:

(a)
whether the Change Request is accepted; and
(b)
whether any changes to the Fees or the other provisions of the Agreed Work Order are reasonably required to give effect to the Change.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

06.4

Incorporation into Agreement:

(a)
Following agreement between the parties in writing in respect of a Change Request, the Agreed Work Order and/or this Agreement, will then be deemed to be amended so as to reflect the agreed terms of the Change Request.
(b)
Made Studio will not be bound to undertake further work subject of any Change Request unless the parties have agreed to the relevant Change Request in writing.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

06.5

Minor changes: If the change requested is:

(a)
relatively minor (in terms of cost and impact); or
(b)
agreed by the parties (such agreement not to be unreasonably withheld),
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

a truncated change management process (acceptable to both parties) may be adopted to deal with the particular Change Request.

07

Intellectual Property

07.1

Pre-existing Intellectual Property: All Intellectual Property owned by, or licensed to (other than by the other party), either party and existing prior to the Commencement Date (Pre-existing Intellectual Property) shall remain the exclusive property of that party.

07.2

New IP:

(a)
The parties acknowledge and agree that any Intellectual Property that is developed or created by Made Studio in connection with performance of the Services or the supply of any Deliverables will vest in, and is assigned to, the Client subject to the Client's payment for the relevant Services and/or Deliverables in full.
(b)
Notwithstanding clause 7.2(a), any Intellectual Property that is developed or created through the modification, enhancement, adaptation and/or development of Made Studio's Pre-existing Intellectual Property shall vest absolutely in Made Studio upon creation.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

07.3

Licences:

(a)
You grant Made Studio a royalty-free, non-exclusive license during the Term to use your Pre-existing Intellectual Property to the extent reasonably required by Made Studio to perform its Made Studio's obligations under this Agreement and to provide the Services and Deliverables to you.
(b)
Made Studio grants you a non-exclusive, non-transferable, royalty-free license to use any Intellectual Property owned by Made Studio to the extent required to receive and enjoy the full benefit of the Services and the Deliverables for its internal business purposes.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

07.4

Further assurances: Each party undertakes at its own expense to execute and deliver any document and to do all things as may reasonably be required in order to assist, in respect of matters within that party’s control, the other party to obtain the full benefit of this clause 7 according to its true intent.

07.5

Know how: Nothing in this Agreement limits Made Studio's right to use any ideas, concepts, methodologies, processes and know-how that are used, developed or created in the course of providing the Services and/or Deliverables, provided that such use does not breach any confidentiality obligation owed by Made Studio to you or infringe your Intellectual Property rights.

08

Confidentiality

08.1

Confidentiality: Each party (Receiving Party) acknowledges that the Confidential Information of the other party(Disclosing Party) is valuable to the Disclosing Party. The Receiving Party undertakes to keep the Confidential Information of the Disclosing Party confidential, and to protect and preserve the confidential nature of that information.

08.2

Use and disclosure of Confidential Information:

(a)
The Receiving Party may only use or reproduce the Confidential Information of the Disclosing Party for the purposes of performing the Receiving Party’s obligations or exercising its rights under this Agreement.
(b)
The Receiving Party must not disclose the Confidential Information of the Disclosing Party to any person except as permitted by this Agreement.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

08.3

Disclosure of Confidential Information: The Receiving Party may disclose Confidential Information of the Disclosing Party to:

(a)
the Receiving Party’s personnel, contractors as is necessary to fulfil its obligations under this Agreement;
(b)
the extent that Confidential Information already is or becomes public knowledge other than as result of a breach of this clause 8;
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
the extent that Confidential Information can be proven to be already known by the Receiving Party at the time of the disclosure by the Disclosing Party, other than as a result of any disclosure under this Agreement and other than as a result of a breach of this clause 8;
(d)
any person with the prior written consent of the Disclosing Party; or
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(e)
the extent the disclosure is required by law.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.

08.4

Client referee and promotional material: Unless otherwise agreed, you acknowledge and agree that Made Studio may publish your name, brand, trade mark and/or details of the Services provided to you under this Agreement on Made Studio's website or in other external marketing or promotional material in order to market and otherwise promote Made Studio's experience and work to date.

09

Privacy

09.1

If Made Studio processes Personal Information (as defined in the Privacy Act 2020 (NZ) in the course of performing its obligations under this Agreement, Made Studio will:

(a)
comply with all applicable privacy laws in respect of Made Studio's processing of that Personal Information; and
(b)
not do or omit to do anything that will cause you to breach your obligations under any applicable privacy law.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

10

Warranties

10.1

Mutual warranties: Each party warrants to the other party that:

(a)
it has full power and capacity to execute, deliver, and perform its obligations under, this Agreement; and
(b)
it is not aware of any fact or circumstance which would, or might reasonably be expected to, prevent the that party from performing its obligations under this Agreement.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

10.2

Warranties excluded: Made Studio does not warrant:

(a)
that the Services or any Deliverables will be uninterrupted or error free or meet your requirements or otherwise be fit for any particular purpose;
(b)
the performance or results that you may obtain by using the Services or any Deliverables; or
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
that all errors will be corrected.

10.3

Exclusion of implied warranties:

(a)
The warranties and conditions expressly stated in this Agreement are given in place of all other warranties, conditions and other terms, express or implied, all of which are excluded to the maximum extent permitted by law.
(b)
Where any Act of Parliament (Act) implies any term, condition or warranty (implied term) into this Agreement, and that Act avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under the implied term, that implied term is deemed to be included in this Agreement. Made Studio's liability for any breach of the implied term (or any other warranty or condition given by Made Studio under this Agreement or breach of this Agreement) is limited, at Made Studio's option, to resupply of the Services or refund of the Fees paid for the relevant Services.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
the extent that Confidential Information can be proven to be already known by the Receiving Party at the time of the disclosure by the Disclosing Party, other than as a result of any disclosure under this Agreement and other than as a result of a breach of this clause 8;
(d)
any person with the prior written consent of the Disclosing Party; or
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(e)
the extent the disclosure is required by law.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.

11

Third party products and services

11.1

Third-party products or services: You acknowledge and agree that third-party products or services (for example, the Shopify platform services) (each a Third-Party Product) may be integrated into the Services and/or any Deliverables provided by Made Studio in connection with this Agreement. Your use of such Third-Party Products, and any exchange of data between you and any third-party provider or Third-Party Product is solely between you and the applicable third-party provider. Made Studio not warrant or support any Third-Party Product, unless expressly provided otherwise in the Agreed Work Order. Made Studio is not responsible for any disclosure, modification or deletion of your data resulting from access by such Third-Party Product or its provider

11.2

Integration with Third-Party Products: The Services may contain features designed to interoperate with Third-Party Products. Made Studio cannot guarantee the continued availability of such Service features, and may cease providing them without entitling you to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Product ceases to make the Third-Party Product available for interoperation with the corresponding Service and/or Deliverable.

12

Liability and indemnity

12.1

Made Studio's aggregate and total liability for any and all claims arising under or out of this Agreement (including for negligence) or otherwise howsoever arising that is not already limited under this Agreement is limited to direct damages and will not exceed the amount of Fees paid or payable by the Client in respect of the Services giving rise the liability in the 12months preceding the date of the relevant claim.

12.2

To the maximum extent permitted by law, Made Studio is not liable to the Client for any incidental, special, indirect, consequential, or punitive losses of any character, including damages for loss of business or goodwill, loss of opportunity, work stoppage, system or website disruption, loss of information or data, loss of revenue, profit or anticipated savings, any other commercial or economic loss of any kind, whether arising in contract, breach of warranty, tort (including negligence),product liability, or otherwise.

12.3

The Client shall indemnify and hold Made Studio harmless in respect of any damage, loss, liability or expense suffered or incurred by Made Studio as a result of a third party claim against Made Studio caused or contributed to by an act or omission of the Client or its employees, agents or contractors.

13

Force Majeure

13.1

Force Majeure: Neither party will be liable for any act, omission or failure by it under this Agreement if that act, omission or failure results directly from a Force Majeure event, provided that the affected party must:

(a)
as soon as reasonably practicable after becoming aware of the Force Majeure, notify the other party in writing accordingly, describing the event or circumstance of Force Majeure; and
(b)
use reasonable endeavours to:
(i)
overcome, and to mitigate the effects of, the Force Majeure; and
(ii)
complete the affected party's obligations under this Agreement so far as is practicable in light of the event of circumstance of Force Majeure.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies with any of the agreed requirements or specifications set out in the Agreed Work Order

13.2

Definition: For the purposes of clause 13.1, Force Majeure means, in relation to either party (Affected Party), an event or circumstance which is beyond the reasonable control of the Affected Party, including any:

(a)
war, riot, strike, lockout, slowdown, epidemic, fire, flood, lightning, explosion, hurricane, typhoon, earthquake, act of God or other natural disaster or government action or restriction; or
(b)
internet service provider failure or delay, denial of service attack or similar third-party intervention,
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
that all errors will be corrected.

but does not include any lack of funds on the part of the Affected Party.

12.3

The Client shall indemnify and hold Made Studio harmless in respect of any damage, loss, liability or expense suffered or incurred by Made Studio as a result of a third party claim against Made Studio caused or contributed to by an act or omission of the Client or its employees, agents or contractors.

14

Term and termination

14.1

Term: This Agreement commences on the Commencement Date and will continue in force for the term specified in the Agreed Work Order, or if no such term is specified, until the Agreement is terminated in accordance with its terms or at law(Term).

14.2

Termination: Either party may terminate this Agreement with immediate effect by notifying the other party in writing if:

(a)
the other has committed any material or persistent breach of this Agreement which is either incapable of remedy or which, if capable of remedy, has not been remedied within 14 days of the non-defaulting party giving the other party notice of the nature of such breach and requiring it to be remedied;
(b)
the other party suffers as Insolvency Event;
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
any event of Force Majeure occurs which is of such magnitude or will be of such duration that it is, or is reasonably likely to be, impossible or impractical for Made Studio to comply, to a material extent, with Made Studio's obligation sunder this Agreement (taken as a whole) for a period of 20 Business Days or longer; or
(d)
all Services under the Agreement have been completed.

14.3

Consequences: Upon expiry or termination of this Agreement for whatever reason:

(a)
each party must return, destroy or otherwise deal with the other party's Confidential Information and Intellectual Property in accordance with the other party's reasonable directions;
(b)
Made Studio will immediately cease to provide the Services and will be entitled to render a final invoice to you in respect of the Fees for all Services performed prior to termination which have not already been invoiced, and you will pay such invoice and any and all other outstanding invoices for Fees in accordance with this Agreement;
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
the parties acknowledge and agree that such termination will be without prejudice to the rights and remedies of either party in respect of any preceding breach of this Agreement by the other party; and
(d)
clauses 7, 8, 10.2, 10.3, 11, 12, 13, 15, 16, 17, 18 and this clause 14.3 will survive termination of this Agreement, together with such other provisions of this Agreement that are by their nature intended to survive termination.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(e)
the extent the disclosure is required by law.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.

15

Disputes

15.1

Where any dispute arises in connection with this Agreement or its subject matter, the party raising the dispute must notify the other party in writing, as soon as reasonably practicable specifying the matter in dispute.

15.2

The parties will endeavor to resolve the dispute within 10 Business Days of written notice of the dispute by good faith negotiations between the parties.

15.3

Neither party may issue any legal proceedings (other than for urgent interlocutory relief), in respect of any such dispute, unless that party has first taken reasonable steps to comply with this clause 15.

16

Notices

16.1

Any written notice required to be given pursuant to this Agreement shall be deemed validly given if:

(a)
delivered by hand or sent by email to the intended recipient’s physical address or email address as set out in the Agreed Work Order (or to such other address as the intended recipient shall notify to the other party by written notice from time to time); and
(b)
signed by a duly authorized officer of the party giving that notice.
(i)
overcome, and to mitigate the effects of, the Force Majeure; and
(ii)
complete the affected party's obligations under this Agreement so far as is practicable in light of the event of circumstance of Force Majeure.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies with any of the agreed requirements or specifications set out in the Agreed Work Order

16.2

For the purposes of this Agreement, any notice delivered:

(a)
after 5pm on a Business Day, or at any time on a non-Business Day, shall be deemed received at 9am on the next Business Day;
(b)
by post shall be deemed received the next Business Day after dispatch; or
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
by email shall be deemed received two hours after dispatch, unless the party sending such notice has received an automated error message indicating that delivery has not occurred.
(d)
all Services under the Agreement have been completed.

17

General

17.1

Entire agreement: This Agreement records the entire understanding and agreement of the parties relating to the matters dealt with in this Agreement. This Agreement supersedes all previous understandings or agreements (whether written, oral or both) between the parties relating to these matters.

17.2

Assignment: You may not assign or otherwise transfer any of your rights or obligations under this Agreement to any other person without our prior written consent.

17.3

Relationship between the parties: Nothing in this Agreement will constitute either party as the partner, agent, employee or officer of the other party, and neither party will make any contrary representation to any other person.

17.4

Amendments: Without limiting clause 6, no amendment to this Agreement will be valid unless recorded in writing and signed by a duly authorized representative of each party

17.5

Counterparts:

(a)
This Agreement may be signed in counterparts (including electronic counterparts). All executed counterparts together will constitute one document.
(b)
Any counterpart of this Agreement that is received via email in PDF or other document reproduction format (including any copy of any document evidencing a party's signature to this Agreement) may be relied on by any party as thought were an original copy. This Agreement may be entered into on the basis of an exchange of such PDF or other document reproduction format copies.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
You will be deemed to have accepted the Proposed Design unless you have notified Made Studio in writing within 10Business Days of receipt of the Proposed Design, that you do not consider that the Proposed Design complies withany of the agreed requirements or specifications set out in the Agreed Work Order

17.6

Governing law and jurisdiction: This Agreement is governed by the laws of New Zealand. The parties submit to the nonexclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.

18

Definitions and interpretations

18.1

Definitions: In these Terms of Service, unless the context requires otherwise:

Agreed Work Order means a document incorporating these Terms of Service circulated by Made Studio that is executed by both parties and sets out (without limitation):

(a)
the specific Services to be provided by Made Studio to you;
(b)
the Fees for the relevant Services (including the basis for calculation of such Fees); and
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
any further special conditions, such as the hours during which the Services are to be provided.

Agreement has the meaning given in clause 1.1.

Business Day means any day, excluding Saturdays, Sundays and public holidays in Auckland.

Change Management Process means the change management process set out in clause 6.

Change Request has the meaning given in clause 6.2(b).

Client Contributed Delay has the meaning given in clause 3.1.

Commencement Date means unless otherwise specified in the Agreed Work Order, the date on which the relevant Agreed Work Order is signed by both parties.

Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement, and includes any information and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy, the Intellectual Property or other proprietary information or material of a party or dealings under this Agreement.

Deliverable means any product, software, report, or other deliverable which is provided, or to be provided, to you by Made Studio in connection with the performance of Made Studio's obligations under this Agreement.

Fees means the amount(s) to be paid to Made Studio for the provision of Services pursuant to this Agreement as set out in the Agreed Work Order.

GST means goods and services tax under the Goods and Services Tax Act 1985, at the rate prevailing at the relevant time.

Insolvency Event means, in relation to a party, anything that reasonably indicates that there is a material risk that the party is insolvent or will become unable to pay its debts as they fall due including:

(a)
any step being taken to make the party bankrupt, wind up the party's business or to have a receiver, administrator, liquidator or statutory manager appointed to or in respect of the party or any of its assets;
(b)
the party ceasing to carry out its business; or
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
a meeting of the party's creditors being called or held or the party entering into this type of arrangement with, or assignment for the benefit of all or any of its creditors.

Intellectual Property means all intellectual property rights, including patents, trademarks, service marks, logos, trade dress, trade names, domain names, rights in designs, copyright (including computer software and algorithms), database rights, semi-conductor topography rights, utility models, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for registration, and all other rights or forms of protection having equivalent or similar effect anywhere in the world.

Pre-existing Intellectual Property has the meaning given in clause 7.1.

Terms of Service means clauses 1 to 18 of this document.

Services means:

(a)
the services to be provided by Made Studio under this Agreement, as set out in the Agreed Work Order, and includes the provision of all Deliverables; and
(b)
any additional services as may be agreed in writing between the parties from time to time pursuant to a Change Request.
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
a meeting of the party's creditors being called or held or the party entering into this type of arrangement with, or assignment for the benefit of all or any of its creditors.

Term has the meaning given in clause 14.1.

Warranty Period means the period of two months following (i) the delivery of the relevant Deliverable to you; or (ii) your use of the relevant Deliverable in a live-production environment, whichever if the earlier.

18.2

Interpretation: In these Terms of Service, unless the context requires otherwise:

(a)
wherever the words includes or including (or any similar words) are used, they are deemed to be followed by the words "without limitation";
(b)
references to any document (however described) are references to that document as modified, novated, supplemented, varied or replaced from time to time, and in any form, whether paper based or in electronic form;
(i)
constitute a tax invoice for GST purposes; and
(ii)
if Made Studio agrees (acting reasonably) as to the existence of the non-conformity, Made Studio shall usereasonable endeavours to correct any non-conformity at Made Studio's cost.
(c)
unless otherwise set out in an Agreed Work Order, all monetary amounts are stated in NZD; and
(d)
references to any statutory provision include any statutory provision which amends or replaces it, and any regulation or statutory instrument made under it.

17.3

Relationship between the parties: Nothing in this Agreement will constitute either party as the partner, agent, employee or officer of the other party, and neither party will make any contrary representation to any other person.