Terms and Conditions - cybersenpai

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I know it's tempting to skip this, but it's important to establish what you can expect from me, and what I expect from you during our collaboration.

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This version of the Terms and Conditions is provided for reference only and does not supersede the one attached to your Services Agreement.

1. Independent contractor

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TLDR

This is not an employment agreement, so you don’t have to worry about any charges, expenses, or organising my work.

A. No Employment

Neither Party is by virtue of the Agreement authorised as an agent, employee, or legal representative of the other. Neither party shall have the power to control the activities and operations of the other and its status at all times will continues to be that of an independent contractor relationship.

B. No Location Restrictions

The Client shall not be permitted to place any location restrictions on Tom Newspring. Tom Newspring does not use any equipment, including electronic equipment, owned by the Client and Tom Newspring does not maintain any equipment at the Client’s place of business. Tom Newspring may work anywhere Tom Newspring chooses.

C. No Specific Hours

The Client may not control the hours or timing that Tom Newspring works. Tom Newspring must keep track of hours for billing purposes only. There is no expectation that Tom Newspring works full-time hours.

D. Expenses

Tom Newspring shall be solely and exclusively responsible for any expenses incurred under this Agreement. The Client shall have no part of paying or reimbursing expenses.

2. Intellectual Property

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TLDR

You will retain all of your existing intellectual property, though you give me license to use it for the duration of our collaboration and only for the purpose of performing the services.

You will have complete and unlimited ownership of the deliverables.

We are both responsible for the use of third-party intellectual property.

A. Retained rights

Each Party will retain all right, title, and interest in and to its own Pre-Existing Intellectual Property irrespective of any disclosure of such Pre-Existing Intellectual Property to the other party, subject to any licences granted herein.

B. Pre-Existing Intellectual Property

Tom Newspring will not use any of Tom Newspring or third party Pre-Existing Intellectual Property in connection with this Agreement unless Tom Newspring has the right to use it for the Client’s benefit. If Tom Newspring is not the owner of such Pre-Existing Intellectual Property, Tom Newspring will obtain from the owner any rights as are necessary to enable Tom Newspring to comply with this Agreement.

Tom Newspring grants the Client a non exclusive, royalty free, worldwide, perpetual and irrevocable license in Tom Newspring and third party Pre-Existing Intellectual Property, to the extent such Pre-Existing Intellectual Property is incorporated into any Deliverable, with the license including the right to make, have made, sell, use, reproduce, modify, adapt, display, distribute, make other versions of and disclose the property and to sublicense others to do these things.

Tom Newspring will not incorporate any materials from a third party, including open source or freeware, into any Deliverable unless (i) Tom Newspring clearly identifies the specific elements of the Deliverable to contain third party materials, (ii) Tom Newspring identifies the corresponding third party licenses and any restrictions on use thereof, and (iii) approval is given by the Client in writing.

Tom Newspring represents, warrants and covenants that Tom Newspring has complied and shall continue to comply with all third party licenses (including all open source licenses) associated with any software components that will be included in the Deliverables or any other materials supplied by Tom Newspring.

Tom Newspring shall indemnify the Client against any losses and liability incurred by the Client due to failure of Tom Newspring to meet any of the requirements in any of the third party licenses.

C. Ownership of the Deliverables

Subject to Tom Newspring and third party rights in Pre-Existing Intellectual Property, all Deliverables, whether complete or in progress, and all Intellectual Property Rights related thereto shall belong to the Client, and Tom Newspring hereby assigns such rights to the Client.

Tom Newspring agrees that the Client will own all patents, inventor’s certificates, utility models or other rights, copyrights or trade secrets covering the Deliverables and will have full rights to use the Deliverables without claim on the part of Tom Newspring for additional compensation and without challenged, opposition or interference by Tom Newspring, and Tom Newspring will waive their respective moral rights therein.

Tom Newspring will sign any necessary documents and will otherwise assist the Client in securing, maintaining, and defending copyrights or other rights to protect the Deliverables in any country.

D. No Rights to Client Intellectual Property

Except for the limited license to use materials provided by the Client as may be necessary in order for Tom Newspring to perform the Services under this Agreement, Tom Newspring is granted no right, title, or interest in any Client Intellectual Property.

3. Confidentiality

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TLDR

Confidential information will remain confidential unless disclosure is required by law.

A. Confidential Information

For purposes of this Agreement, “Confidential Information” shall mean information on material proprietary to a Party or designated as confidential by such Party (the “Disclosing Party”), as well as information about which a Party (the “Receiving Party”) obtains knowledge or access, through or as a result of this Agreement (including information conceived, originated, discovered, or developed in whole or in part by Tom Newspring hereunder).

B. Confidential Information does not include

(i) information that is or becomes publicly known without restriction and without breach of this Agreement or that is generally employed by the trade at or after the time the Receiving Party first learns of such information; (ii) generic information or knowledge which the Receiving Party would have learned in the course of similar employment or work elsewhere in the trade; (iii) information the Receiving Party lawfully received from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iv) information the Receiving Party rightfully knew prior to receiving such information from the Disclosing Party to the extend such knowledge was not subject to restrictions on further disclosure; or (v) information the Receiving Party develops independent of any information originating from the Disclosing Party.

C. Client Confidential Information

The following constitute Confidential Information of the Client and should not be disclosed to third parties; the Deliverables, discoveries, ideas, concepts, software in various states of development, designs, drawings, specifications, techniques, models, data, source code, source files and documentation, object code, documentation, diagrams, flow charts, research, development, processes, procedures, “know-how”, marketing techniques and materials, marketing and development plans, customer names and other information related to customers, price lists, pricing policies and financial information, this Agreement and the existence of this Agreement, and any work assignments authorised or issued under this Agreement.

Tom Newspring will not use the Client’s name, likeness or logo (the Client’s “Identity”), without Client’s prior written consent, to include use or reference to the Client’s Identity, directly or indirectly, in conjunction with any other clients or potential clients, any client lists, advertisements, news releases or releases to any professional or trade publications.

D. Non-Disclosure

The Parties hereby agree that during the term hereof and at all times thereafter, and except as specifically permitted herein or in a separate writing signed by the Disclosing Party, the Receiving Party shall not use, commercialise or disclose Confidential Information to any person or entity.

Upon termination, or at any time upon the request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party all Confidential Information, including all notes, data, reference materials, sketches, drawings, memorandums, documentations, and records which in any way incorporate Confidential Information.

E. Right to Disclose

With respect to any information, knowledge, or data disclosed to the Client by Tom Newspring, Tom Newspring warrants that Tom Newspring has full and unrestricted right to disclose the same without incurring legal liability to others, and that the Client shall have full and unrestricted right to use and publish the same as it may see fit.

Any restrictions on the Client’s use of any information, knowledge, or data disclosed by Tom Newspring must be made known to the Client as soon as practicable and in any event agreed upon before the start of any work.

4. Conflict of Interest

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TLDR

I guarantee that accepting this collaboration will not create a conflict interest.

Tom Newspring represents that its execution and performance of this Agreement does not conflict with or breach any contractual, fiduciary, or other duty or obligation to which Tom Newspring is bound. Tom Newspring shall not accept any work from the Client or work from any other business organisations or entities which would create an actual or potential conflict of interest for Tom Newspring or which is detrimental to the Client’s business interests.

5. Warranties

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TLDR

I guarantee that the services provided will meet the requirements, and that I have the skills to do so.

I also guarantee that I have the necessary rights to do business with you.

Tom Newspring represents and warrants that: (i) the Services and Deliverables are original and do not infringe upon any third party’s patents, trademarks, trade secrets, copyrights or other proprietary rights; (ii) it will perform the Services hereunder in a professional and workmanlike manner; (iii) the Deliverables provided to the Client are new, and will meet the requirements and conform with any specifications agreed between the Parties; (iv) it has all necessary permits and is authorised to do business in all jurisdictions where the Services are to be performed; (v) it will comply with all applicable local laws in performing the Services; (vi) it has all rights to enter into this Agreement and there are no impediments to Tom Newspring’s execution of this Agreement.

6. Termination

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TLDR

We may both terminate the agreement if any term or provision has been breached by the other and can’t be resolved in 14 days. You will only have to pay for the work that has been performed.

You may also terminate the agreement for your convenience at any time. In that case, you may have to pay an early termination fee and the agreed price for the work that has already been approved.

A. Rights to Terminate

This Agreement may be terminated by either Party, upon notice in writing (i) if the other Party commits a material breach of any term of this Agreement that is not capable of being remedied within fourteen (14) days or that should have been remedied within fourteen (14) days after a written request and was not; (ii) if the other Party becomes unable to perform its duties hereunder, including a duty to pay or a duty to perform.

B. Termination Terms

Upon termination of this Agreement under the conditions set out in Section A above, Tom Newspring will immediately provide the Client with any and all work in progress or completed prior to the termination date. As the Client’s sole obligation to Tom Newspring resulting from such termination, the Client will pay Tom Newspring an equitable amount as determined by the Client for the partially completed work in progress, and the agreed to price for the completed Services and/or Deliverables provided and accepted prior to the date of termination.

C. Early Termination

The Client may also terminate this Agreement for its convenience at any time, upon notice in writing to Tom Newspring. Tom Newspring will immediately provide the Client with any Deliverables accepted prior to the date of termination. As the Client’s sole obligation to Tom Newspring resulting from such termination, the Client will pay Tom Newspring an Early Termination Fee as set out in Section 4 (“Pricing and Rates”) of the Services Agreement, and the agreed to price for the completed Services and/or Deliverables provided and accepted prior to the date of termination.

Tom Newspring may decide to waive or reduce the Early Termination Fee at its sole discretion.

D. On-going Relationship

No on-going relationship between the Parties is contemplated and the Client may not assign additional work to Tom Newspring. The Parties may decide, through an addendum to this Agreement, to expand the scope of the Services, but such Agreement may only be in writing and with explicit terms.

E. Survival

Any provision or clause in this Agreement that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement.

7. Limitation of Liability

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TLDR

We may not hold the other liable for any issues directly or indirectly related to our collaboration unless required by law.

Except as set forth in this section below, in no event will the Parties be liable for any special, indirect, incidental, or consequential damages nor for loss of data, profits or revenue, cost of capital or downtime costs, nor for any exemplary or punitive damages, arising from any claim or action, incidental or collateral to, or directly or indirectly related to or in any way connected with, the subject matter of the Agreement, whether such damages are based on contract, tort, statute, implied duties or obligations, or other legal theory, even if advised of the possibility of such damages.

Notwithstanding the foregoing, any purported limitation or waiver of liability shall not apply to the contractor's obligation under the indemnification or confidential information sections of this agreement or either Party's liability to the other for personal injury, death, or physical damage to property claims.

8. Inspection and Acceptance

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TLDR

If any service or deliverable doesn’t meet the requirements, you may request them to be corrected at no extra cost or have its price reduced.

Note that this is not a provision for unlimited modifications.

If any of the Services performed or Deliverables delivered do not conform to specified requirements, the Client may require Tom Newspring to perform the Services again or replace or repair the non-confirming Deliverables in order to bring them info full conformity with the requirements, at Tom Newspring’s sole cost and expense.

When the defects in the Services and/or Deliverables cannot be corrected by re-performance, the Client may: (i) require Tom Newspring to take necessary action to ensure that future performance conforms to the requirements and/or (ii) reduce any price payable under the applicable projects to reflect the reduced value of the Services performed and/or Deliverables delivered by Tom Newspring and accepted by the Client.

9. General provisions

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TLDR

Our collaboration shall be governed by the laws of New Zealand.

Communications shall be in English, dates and times are to be interpreted in New Zealand’s timezone, and the default currency is the New Zealand dollar (NZD).

Emails are the preferred communication channel.

A. Governing Law

This Agreement shall be governed and enforced in all respects by the laws of New Zealand. The Parties shall make a good-faith effort to amicably settle by mutual agreement any dispute that may arise between them under this Agreement.

B. Language and Region

Pursuant to Section A above: (i) all communications made or notices given pursuant to this Agreement shall be in the English language; (ii) any date or time will be enforced in New Zealand’s local time zone; and (iii) the New Zealand dollar (“NZD”, “NZ$”) is the default currency for the purposes of this agreement.

C. Assignment

This Agreement, or the rights granted hereunder, may not be assigned, sold, leased, or otherwise transferred in whole or part by either Party.

D. Amendments

This Agreement may only be amended in writing signed by both Parties.

E. No Waiver

None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date.

Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.

F. Severability

If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement.

G. Force Majeure

Tom Newspring is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.

H. Electronic Notices

Any notice to be given under this Agreement shall be in writing and shall be sent by email to the address of the relevant Party set out at the head of this Agreement.

Notices sent as above shall be deemed to have been received one (1) working day after sending.

I. Entire Agreement

This document and all attached or incorporated documents contains the entire Agreement between the Parties and supersedes any previous understanding, commitments or agreements, oral or written.

Further, this Agreement may not be modified, changed, or otherwise altered in any respect except by a written agreement signed by both Parties.

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Contact me if you have any more questions:

uxgabriele@gmail.com