TERMS OF BUSINESS
1. General Terms
BRIGHT BLACK will supply its advice on a confidential basis for the exclusive use of (“THE CLIENT”) for the purposes of this engagement. This advice is not to be distributed further or used for any other purposes without the written permission of BRIGHT BLACK.
In preparing its advice, BRIGHT BLACK relies on information supplied by THE CLIENT, its advisors and third parties, and must assume that such information is accurate. BRIGHT BLACK can take no responsibility for inaccurate information supplied by THE CLIENT or any third party or for any failure by THE CLIENT or any third party to provide relevant information.
THE CLIENT will exercise its own judgement in considering and using the advice provided by BRIGHT BLACK.
THE CLIENT agrees to indemnify and hold harmless BRIGHT BLACK from and against (without limitation) any losses, reasonable expenses (including executive time at BRIGHT BLACK’s agreed charge out rates), claims, any liability for any taxes, costs or reasonable expenses relating to proceedings or regulatory investigations (together “Losses”) related to or arising from this engagement, except with respect to any Losses that are finally judicially determined to have resulted primarily from the negligence, recklessness, fraud or willful misconduct of BRIGHT BLACK, its directors, officers or employees.
BRIGHT BLACK shall not be liable for any consequential, special or indirect damages (including loss of profits or opportunities) suffered or incurred by THE CLIENT except for those resulting primarily from the gross negligence, recklessness, breach of contract, fraud or willful misconduct of BRIGHT BLACK, its directors, officers or employees.
BRIGHT BLACK may not settle nor compromise or consent to the entry of any judgment in any proceedings in respect of which THE CLIENT is obliged to indemnify BRIGHT BLACK without the prior written consent of THE CLIENT (such consent not to be unreasonably withheld or delayed).
Nothing in this engagement shall be taken to indemnify BRIGHT BLACK to the extent that to do so would be void under New Zealand law. This indemnity is a continuing obligation, may have multiple applications, and shall continue in full force and effect notwithstanding the conclusion or termination of BRIGHT BLACK’s contract with THE CLIENT.
3. Profile Information
BRIGHT BLACK agrees to be featured in THE CLIENT corporate communications as a Contractor and confirms that portfolio information that provided to THE CLIENT is true and correct.
BRIGHT BLACK will be held responsible for any consequences that result from providing incorrect or untrue information on their portfolio.
4. Email and Digital Policy
If BRIGHT BLACK has an email address provided by THE CLIENT, this email must be used by BRIGHT BLACK for all communication in relation to THE CLIENT and must only be used for the sole purpose of THE CLIENT business.
All emails sent in relation to THE CLIENT business (whether from a personal or THE CLIENT company email) must be in-line with how an employee of THE CLIENT should communicate. They must not cause THE CLIENT any disrepute.
Email messages become part of the Company’s computer system and are the Company’s property. The Company may therefore intercept and read any email messages being sent or received.
The Contractor will have access to a repository to store all their files in relation to their contract with THE CLIENT. The contractor will ensure that all work is backed up to this repository on the minimum of a weekly basis.
5. Confidential Information
BRIGHT BLACK shall not at any time or for any reason, whether during the term of this agreement or after its termination, use or disclose to any person any confidential information relating to information, or trade secrets of the Company (except so far as may be reasonably necessary to enable BRIGHT BLACK to fulfil his obligations and signed off by THE CLIENT prior to disclosure). All information disclosed to BRIGHT BLACK during the course of this engagement, is deemed to be confidential.
BRIGHT BLACK will not use such confidential information for any purpose other than as necessary for the performance of services under this contract, except to the extent compelled by applicable law.
The restrictions contained in the first 2 points above apply both during the term of this agreement and following the expiry of the agreement. These restrictions shall apply perpetually for any confidential information that specifically relates to financial records,
business plans and strategy, THE CLIENT’s technology and anything that is deemed to be included as THE CLIENT’s IP.
Notwithstanding the above, for the purposes of this section 11, confidential information shall not include any such information which BRIGHT BLACK can establish
(i) was publicly known or made generally available prior to the time of disclosure to BRIGHT BLACK;
(ii) becomes publicly known or made generally available after disclosure to BRIGHT BLACK through no wrongful action or inaction of BRIGHT BLACK; or
(iii) is in the rightful possession of BRIGHT BLACK, without confidentiality obligations, at the time of disclosure as shown by BRIGHT BLACK's then - contemporaneous written records.
For this purpose, “Confidential Information” includes all information (whether oral or written) of a confidential or commercially sensitive nature, including the terms of this Engagement Letter, disclosed to BRIGHT BLACK in relation to THE CLIENT and its business. None of the above replaces the NDA, the signed NDA still stands in all respects.
6. Intellectual Property
Any original work, process, design or other material produced on behalf of THE CLIENT or arising during the course of BRIGHT BLACK undertaking work for THE CLIENT shall remain the property of THE CLIENT which it shall have full rights to.
BRIGHT BLACK accepts that clients of the Company remain clients of THE CLIENT after termination of this contract, and he will not approach any clients, associates, contractors or employees of THE CLIENT for work other than for the benefit of THE CLIENT for a period of 18 months following the expiry of the agreement. The above restriction is not applicable in the case of a pre-existing relationship with BRIGHT BLACK before the contracting period commenced.
If BRIGHT BLACK is found to have infringed THE CLIENT’s IP, reasonable damages will be claimed from BRIGHT BLACK and any affiliate party THE CLIENT deem relevant to the infringement.
7. Termination of Contract
Either party may terminate this agreement with 30-days of advance notice in writing, or immediately with the agreement and signature of both parties.
Upon ceasing the contract BRIGHT BLACK shall immediately deliver to THE CLIENT all files, records, equipment and any other property belonging to THE CLIENT to the satisfaction of THE CLIENT. BRIGHT BLACK must pass over all files and work (whether complete or not) that relate to THE CLIENT and its role as a contractor to THE CLIENT. BRIGHT BLACK must then delete these files.
Upon ceasing the contract, THE CLIENT is responsible to compensate BRIGHT BLACK for all unbilled hours worked up to the day of ceasing the contract. Bright Black will not be permitted to supply any refunds unless both parties agree in writing. We operate with a no refund policy.
Bright Black reserves the right to terminate the contract at any point of time with 24 hours notice given, a hand over package will be included.
BRIGHT BLACK shall not at any time during the period of employment or for a period of 1 month after termination of the contract, for whatever reason, either on BRIGHT BLACK’s own account or for any other person, firm, organisation or Company, solicit, endeavour to entice away from or discourage from being employed by THE CLIENT, any other employee or Contractor, actual client/customer or prospective client/customer of THE CLIENT.
9. Conflict of Interest
BRIGHT BLACK believes that he has no current conflict of interest in relation to this assignment. If a conflict or likely conflict of interest arises between THE CLIENT and another client of BRIGHT BLACK, BRIGHT BLACK will advise THE CLIENT immediately of the conflict or likely conflict and will endeavour to resolve the situation. BRIGHT BLACK may be required to withdraw from acting for THE CLIENT and/or the other client. BRIGHT BLACK will not at any time, without prior approval from THE CLIENT, disclose any confidential information acquired in the course of this engagement to any other party. THE CLIENT acknowledges that it is not entitled to any information BRIGHT BLACK may acquire in the course of engagements for other clients.
BRIGHT BLACK and THE CLIENT agree in good faith to try and settle any dispute by informal means.
This Contract shall be governed and construed in accordance with the laws of New Zealand, without regard to its principles of conflicts of laws. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the district court having within their jurisdiction the location of THE CLIENT’s principal place of business in New Zealand. Both parties’ consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving notices or otherwise as allowed by New Zealand law; and,
the parties agree and understand that THE CLIENT would not have entered into this contract without this material provision.
12. Good Faith
The parties to this contract shall deal with each other in good faith. They shall be active and constructive in establishing and maintaining a productive contract relationship in which the parties are, among other things, responsive, communicative, supportive, co-operative, transparent and honest. This is an obligation that binds both the Contractor and THE CLIENT.
If a court or other body of competent jurisdiction finds, or the parties mutually believe, any provision of this contract, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this contract will continue in full force and effect.
No modification of or amendment to this contract, nor any waiver of any rights under this contract, will be effective unless in writing signed by the parties.
This contract may be signed in counterparts, each of which shall be deemed an original, with the same force and effectiveness as though executed in a single document.
We operate a no refund policy on any work that we deem to have met the requirements of the agreement of our understanding.