JungleGym Terms of Trade

1. Scope
These terms of engagement (Terms) apply to all work we (JungleGym Ventures Limited) carry out for you (the client), except to the extent we otherwise agree in writing. By asking us to do any work for you, you accept these Terms despite anything stated to the contrary on your order, terms and conditions of purchase or similar documentation. 

2. Definitions
In these Terms, “Project” means the project for the delivery by us of products or services requested by you, as specified in our proposal or any resulting statement of work or similar documentation agreed with you; “Tools and Methods” means all software, tools, trade secrets, methods, concepts, processes or designs used by us in developing or supplying products and services and all intellectual property rights therein; and “Work” means the deliverables to be supplied by us during the Project, as specified in our proposal or any resulting statement of work or similar documentation agreed with you.

3. Fees
3.1 Unless otherwise agreed with you, we will charge at our standard hourly rates based on time spent. Any fee estimates we provide are only guidelines, not fixed or capped amounts. Any fixed or capped fees will be clearly labelled as such, not as estimates. With estimates, our final fees may be higher, and fixed or capped fees may be revised, depending on the quality of the inputs we receive from you or any other third parties, the time taken to provide those inputs, and the extent to which any other assumptions discussed with you hold true, with any additional time required being charged at our standard hourly rates. All fees are stated in New Zealand dollars and are exclusive of tax.     

3.2 Fees, unless otherwise stated, do not include any disbursements or out-of-pocket expenses, including travel expenses, we may incur on the Project, which will be additional to the fees stated. Where practical, we will get these expenses signed off by you beforehand.

4. Payment terms
Unless otherwise agreed with you, we will invoice monthly throughout the Project. All invoices are payable within 14 days of the date of the invoice, time being of the essence. Default interest will accrue on outstanding payments on a daily basis calculated at a rate of 2% per month. You agree to pay all costs, including legal costs (on a client/solicitor basis) incurred in the collection of outstanding payments. We may suspend performance of the Project, withhold any Work and/or terminate our contract with you if you do not pay our invoices when due. 

5. Project process
5.1 We will complete all Work in accordance with reasonable standards of care and skill. Any schedules and timeframes agreed with you are estimates only, and may be affected by matters outside both your and our control. We will make reasonable efforts to complete all Work within estimated timeframes but will not be liable for any failure to do so. You agree to accept all our job quality, standards, methodologies and operating procedures unless alternative standards or methodologies are agreed in writing. You agree to provide all materials, information, decisions and approvals upon request, to assist us with completing the Work within the estimated timframes and costs. Upon giving your approval you will be deemed to have accepted the Work that is the subject of the approval. You will also be deemed to have accepted the Work if you place the Work into production or use or deal with the Work for commercial purposes. 

5.2 Unless otherwise agreed with you, we will staff the Work using those of our own personnel or contractors who we consider are best-placed to deliver the best result for you. Some Work may require that we have access to your team and facilities (including, where appropriate, servers and networks). Any failure or delay in providing the access we need will impact our ability to perform the Work.


7. Defects warranty
If any technical errors result from our failure to use due care or skill or from defects in Work supplied or performed by us we will use reasonable endevours to correct the errors at our own expense, provided you notify us of the errors in writing within 30 days of delivery of the relevant Work. This correction will be your sole and exclusive remedy. You agree to pay us at our standard rates for all time spent on investigating submitted defects that are established to be correctly functioning. All other terms and conditions, warranties or representations whether express or implied (by statute or otherwise) relating to products and services or imposing liability on us are excluded to the maximum extent permitted by law. You agree that the Work supplied or performed by us is acquired for the purposes of a business and that, to the maximum extent permitted by law, the guarantees of the Consumers Guarantees Act 1993 (or other equivalent consumer protection legislation elsewhere) do not apply.

8. Limitation of liability
8.1 We will not be liable to you for any loss of profits, loss of revenue, loss of data, loss of goodwill or savings or for any type of special, indirect, incidental or consequential loss (including, but not limited, to loss or damage suffered by you as the result of an action brought by a third party) even if the loss was reasonably foreseeable or we had been advised of the possibility of you incurring the loss. Also, we will have no liability in respect of products, services or materials supplied by you or by any third party.

8.2 Our total aggregate liability in relation to any Project is limited to the cost of repairing, replacing or re-performing any defective Work and this liability will be limited to the total amounts actually paid to us by you in relation to the Project.

9. Force majeure
We will not be liable for any delay or failure in meeting our obligations due to any cause outside our reasonable control including (without limitation) failure of any telecommunication service provider, failure or delay on the part of any subcontractor beyond its reasonable control, the unavailability of suitable resources or materials, or any failure or delay on your part to comply with our reasonable requests.

10. Intellectual property
You or your licensors retain ownership of all copy, content, code, trademarks and/or trade names and any other intellectual property which you may supply or make available to us at from time to time, as well as any modifications or enhancements that you request us to make, unless we agree otherwise. 
However, all Tools and Methods remain our or our licensors’ property and confidential information and unless we agree otherwise all intellectual property rights that subsist in the Work will vest in us. Upon receipt by us of full payment for the Work you will have a non-exclusive, non-transferable licence to use the Work, and such Tools and Methods as necessary to enable you to use the Work, which licence will continue in perpetuity provided that you continue to comply with these Terms. 

11. Confidentiality
We both agree that, except as otherwise authorised in writing by the other, or as otherwise required to by law, we will not at any time disclose any confidential information received from the other to any person whatsoever and that if the Project is terminated we will return to the other all documents and other materials in our possession or control that were supplied by the other party. 

12. Indemnities
12.1 You indemnify us against any claim for breach of copyright (including breach of moral rights), infringement of intellectual property rights, defamation, or any other claim arising from the instructions and materials supplied by you to us. You are responsible for obtaining all necessary copyright clearances and intellectual property licences for all materials supplied by you for inclusion in the Work. 

12.2 Subject to your indemnity, and subject to the clause headed ‘Limitation of liability”, we indemnify you against any claim for breach of copyright (including breach of moral rights), infringement of intellectual property rights, defamation, or any other claim arising from the development and supply of the Work by us. We are responsible for obtaining all copyright clearances and intellectual property licences for all materials supplied by us for inclusion in the Work.

13. Termination
You may terminate our engagement at any time on written notice to us. If our engagement is terminated you must pay us all fees due up to the date of termination and reimburse all expenses incurred up to that date.

13.2 We may terminate our engagement    if you commit any material breach of these Terms which is incapable of being remedied; or if you commit any material breach of these Terms which is not remedied within five days of us giving you written notice of the breach; or if you become insolven; or if a recevier or manager of any of your assets is appointed, or an order is made or resolution passed for your liquidation.

13.3 Any termination of our engagement will be without prejudice to any rights of either of us accrued up to the date of termination including any rights, powers or remedies available to either of us in contract, at law or in equity, and will not terminate clauses of these Terms which, by their nature are intended to survive expiry or termination.

14. Right of exhibition

You grant us the right to refer to you and the Work undertaken for you for the purpose of promoting our business.

15. Disputes
Our relationship is governed by New Zealand law. We both agree to use reasonable efforts to resolve any dispute arising between us through good faith negotiations. If either of us needs to resort to the courts, New Zealand courts have exclusive jurisdiction. 

16. Future work and amendments
Unless we agree otherwise in writing, these Terms will apply to all work we may do for you in future. From time to time we may revise these Terms.  The revised terms will apply to any requests for work we receive after they have been given or made available to you.

17. Entire agreement
These Terms and our proposal or any resulting statement of work or similar documentation constitute the entire agreement between us, and supersede all prior communications, representations, agreement or understandings, either verbal or written.