AGREEMENT FOR THE SUPPLY OF SERVICES / TERMS OF SERVICE
THIS AGREEMENT ("Agreement") is dated the date of your first use of our services or your assent to the Terms of Service in the apply form of our website www.tmjam.com, www.tmjam.co.nz or www.tmjam.com.au, whichever is earlier ("Effective Date").
(1) TMJAM LIMITED incorporated and registered in New Zealand with company number 5725868 with its principal place of business at (“TMJAM” or “the Supplier”), and
(2) You, ie the other party to this Agreement, (“Customer”),
(each a “Party” and together the “Parties”).
CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 (LIMITATION OF LIABILITY).
THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THIS AGREEMENT
"Agreement" means the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
"Business Day" means a day other than a Saturday, Sunday or public holiday in New Zealand.
"Charges" means the charges payable by the Customer for the supply of the Services in accordance with Clause 5 (Charges and payment).
"Commencement Date" has the meaning given in Clause 2.2.
"Conditions" means these terms and conditions as amended from time to time in accordance with Clause 12.4.
"Control" shall be as defined in section 7 of the Companies Act 1993, and the expression change of control shall be construed accordingly.
"Customer" means you or the person or firm who purchases Services from Supplier.
"Customer Default" has the meaning set out in Clause 4.2.
"Intellectual Property Rights" means any patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Order" means the Customer's order for, or use of, the Services as set out between the parties from time to time, including by email and via the filing of trade mark applications using Supplier's websites www.tmjam.com, www.tmjam.co.nz and www.tmjam.com.au.
"Schedule of Fees" means the charges available on www.tmjam.com, www.tmjam.co.nz and www.tmjam.com.au and updated from time to time.
"Services" means the services supplied by Supplier to Customer as agreed by the Supplier in response to an Order or the the use of the services on the Supplier's Websites including the filing and prosecution of trade mark applications.
"Supplier's Websites" means www.tmjam.com, www.tmjam.co.nz and www.tmjam.com.au.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes emails.
2. BASIS OF CONTRACT
2.1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2. The Order shall be deemed to be accepted:
(a) where it is clear between the parties (for example because of various discussions or emails) that the Supplier is engaged or may be seen to have been instructed to perform the Services; or
(b) where the Customer presses "Submit" to an application to register a trade mark on Supplier's Websites; or
(c) if the Supplier issues written acceptance of the Order.
2.3. Any information, descriptive matter or advertising issued by the Supplier (including on its website or elsewhere) are issued or published for the sole purpose of giving an approximate idea of the Services described therein. Such material shall not form part of this Agreement or have any contractual force.
2.4. These Conditions apply to this Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
2.6. Customer acknowledges and accepts that Supplier is not providing legal services, and that Customer is not the client of Supplier.
2.7. Customer authorises Supplier to act for it in relation to his or her trade mark matters.
3. SUPPLY OF SERVICES
3.1. The Supplier shall supply the Services to the Customer in accordance with the Customer’s express instructions, and in the absence of receiving clear instructions the Supplier may use its judgment to act accordingly.
3.2. The Supplier shall use all reasonable endeavours to meet deadlines as agreed between the parties.
3.3 The Supplier agrees the Services will be provided using reasonable care and skill.
4. CUSTOMER’S OBLIGATIONS
4.1. The Customer shall:
(a) ensure that the terms of the Order are complete and accurate and provide clear and concise instructions;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier in a timely manner with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(d) acknowledge the primary method of communication between it and the Supplier will be email and immediately inform the Supplier in the event it changes its email address;
(e) take all steps necessary to ensure its email address is and remains in working order (for example ensuring there is enough storage space to accept emails and whitelisting the domains www.tmjam.com, www.tmjam.co.nz and www.tmjam.com.au to ensure its messages are not caught by junk or spam filters).
4.2. If Supplier’s performance of any of its obligations under this Agreement is prevented or delayed by any act or omission by the Customer, any failure by the Customer to perform any relevant obligation identified above or elsewhere in this Agreement, or as noted between the parties in writing ("Customer Default"):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend the performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations; and
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause 4.2.
5. CHARGES AND PAYMENT
5.1. The Charges for the Services shall be calculated with reference to the Schedule of Fees or as listed on the Supplier's Websites.
5.2. For matters not listed on the Schedule of Fees the Charges for the Services shall be determined by the Supplier’s hourly charge out rate which is ( $300 + GST per hour effective 05 August 2017);
5.3. The Supplier shall be entitled to charge an overtime rate of up to 100% of the hourly rate on a pro-rata basis for any Services provided under urgency;
5.4. Whether Services are provided under urgency is determined with reference to the nature and extent of the required work and the proximity of any deadline and must be agreed in advance of the urgent work being undertaken;
5.5. The Customer shall pay each invoice submitted by the Supplier within 30 days of the date of the invoice. Time for payment shall be of the essence of this Agreement.
5.6. Except where otherwise expressed, all amounts payable by the Customer under this Agreement are exclusive of goods and services tax chargeable from time to time (GST). Where any taxable supply for GST purposes is made under this Agreement by the Supplier to the Customer, the Customer shall, on receipt of a GST invoice from the Supplier, pay to the Supplier such additional amounts in respect of GST as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7. If the Customer fails to make a payment due to the Supplier under this Agreement by the due date, then, without limiting the Supplier’s remedies under Clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.7 will accrue each day at 4% a year above the Reserve Bank of New Zealand’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.8. All Charges due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.9. Clause 5.8. shall not limit the right of the Supplier to at any time and without notice to set off from its own obligations to the Customer (which may arise outside of this Agreement) any liability, whether such liability is present or future, liquidated or unliquidated, and whether or not such liability arises under this agreement. Any exercise by the Supplier of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
6.2. The Supplier grants to the Customer a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Intellectual Property Rights for the purpose of receiving and using the Services.
6.3. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of this Agreement for the purpose of providing the Services to the Customer.
6.4 The Supplier shall not sub-license, assign or otherwise transfer the rights granted in Clause 6.3.
7. DATA PROTECTION AND PRIVACY
7.1. Each party warrants to the other that it will process personal data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
7.2. Customer acknowledges that Supplier is reliant on Customer for direction as to the extent to which the Supplier is entitled to use and process its personal data. Consequently, the Supplier will not be liable for any claim brought by a data subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.
7.3. The Supplier may authorise a third party (subcontractor) to process the Customer’s personal data provided that the subcontractor’s contract:
(a) is on terms which are substantially the same as those set out in this Agreement; and
(b) terminates automatically on termination of this Agreement for any reason.
8.1. Each party undertakes that it shall not at any time during this Agreement, and for a period of three years after termination of this Agreement disclose to any person any confidential information including the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clauses 8.2. and 8.3.
8.2. Each party may disclose the other party's confidential information to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this Clause 8.
8.3. Each party may disclose the other party's confidential information as required by law to any Court of competent jurisdiction or any governmental or regulatory authority.
8.4. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
9. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1. Nothing in this Agreement shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be limited or excluded by applicable law.
9.2. Subject to Clause 9.1. and notwithstanding Clause 9.3., the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
9.3. Supplier’s total liability to Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to 100% of the total Charges (not including disbursements or expenses) actually paid under this Agreement by Customer in relaton to the matter giving rise to the cause of action or claim.
9.4. The Customer acknowledges that the incorporation of the Supplier means that the Supplier is acting as a separate legal entity from the position of its shareholders, directors, employees and agents, and that any claims must be made against the Supplier itself. The Customer acknowledges that no imputed or constructive liability may exist against any other person who is not a party to this Agreement.
9.5. This Clause 9. shall survive termination of this Agreement.
10.1. Without affecting any other right or remedy available to it, either party may terminate this Agreement by giving the other party 30 days’ written notice.
10.2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Agreement and (if such a breach is remediable) fails to remedy that breach within five Business Days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of any Court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.
10.3. Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment.
10.4. Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under this Agreement or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Agreement on the due date for payment, the Customer becomes subject to any of the events listed in Clause 10.2. or the Supplier reasonably believes that the Customer is about to become subject to any of them.
11. CONSEQUENCES OF TERMINATION
11.1. On termination of this Agreement:
(a) Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and any payable interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) Customer shall return all the Intellectual Property Rights of the Supplier and any deliverables which have not been fully paid for.
11.2. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
11.3. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
12.1. Force majeure
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2. Assignment and other dealings
Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement.
Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the Supplier.
12.3. Entire agreement
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
Nothing in this Clause shall limit or exclude any liability for fraud.
Except as set out in these Conditions, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
Any notice or other communication under or in connection with this Agreement may be sent by Supplier to Customer by email.
12.8. Third party rights
Unless it expressly states otherwise, this Agreement does not give rise to any rights to any third-party under the Contracts (Privity) Act 1982 to enforce any term of this Agreement.
The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
12.9. Governing law and jurisdiction
This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of New Zealand.
Each party irrevocably agrees that the courts of Wellington, New Zealand, shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.