RIVER: Terms of Engagement

This agreement is between the Client and RIVER. This is a legally binding agreement, setting out the terms and conditions upon which RIVER will supply services. Unless explicitly stated otherwise, these Terms of Engagement will apply upon commencement of your project.

1.

Defined Terms

"RIVER": Refers to IDM AGENCY Ltd (trading as RIVER), the Party who is providing work for the Client.
"Client": Refers to the Party receiving work from RIVER, generally yourself or your company.
"Agreement": Agreement refers to this general agreement between the two Parties (RIVER and the Client) for the associated Project, comprising the Terms of Engagement as defined in this agreement in accordance with the work to be undertaken on the Project, alongside any associated documentation provided by RIVER.
"Party(ies)": The Party, or the Parties, refers to either RIVER and/or the Client.
"Project": Refers to the job contracted out by the Client to RIVER (whether paid or pro bono), as outlined in the quote, estimate, or any other documentation (whether verbal or expressly written) for which this Agreement is based.
"Fees": Fees refer to the fees for services quoted, as well as additional fees, or any other fees (whether fixed or variable) outlined in the Statement of Work, and fees to cover unexpected costs. Fixed fees refer to those quoted for a fixed amount of work as outlined in the Statement of Work, whereas variable fees refer to fees relating to an unspecified amount of work yet done and are subject to change.
"Code": Refers to any website, platform, application (app), online system or other online service outlined in the Project that RIVER is providing to the client under the Agreement.
"Intellectual Property (IP) Rights": Intellectual Property Rights refers to patents, trademarks, service marks, trade names, design rights, copyrights, database rights and other Intellectual Property rights whether registered or unregistered including applications for the grant of such right.
"Service Provider": Refers to third party service providers such as online hosting or email providers that RIVER may engage.
"Network": Refers to the platforms, connections online networks that RIVER and any Service Providers use in order to connect the Client's Online Services including but not limited to website(s), platform(s), emails, or any other online services.
2.

Engagement of RIVER

a.
The Client engages RIVER to perform, and RIVER agrees to provide, the services set out in this Agreement on the terms and conditions set out in these Terms of Engagement.
b.
An Agreement is formed when RIVER receives the approval for the Project and this associated Agreement from the Client, or an appointed representative.
3.

Intellectual Property Rights

a.
Nothing in this agreement entitles either Party to use the other Parties name, logo, trademark, or other Intellectual Property (IP) in any way without written consent from the other Party.
b.
RIVER has the right to advertise work it has completed for the Client and add the Project to its portfolio and list of case studies, as well as the right to add a small link to RIVER within any online services
4.

Ownership

a.
In regards to development mapping and platform development, RIVER agrees that the Client shall retain ownership of manual processes specific and unique to the Client (such as the way they interact with their clients). This does not give the Client any ownership or IP rights over any IP owned by RIVER, or any code employed in RIVER's base module, as outlined in Clause 4(d) below.
b.
The Client owns all of the front-end and application code developed for their website (specifically the “app” folder of their project), including back-end code (such as PHP), and front-end code (such as Javascript, HTML).
c.
The Client owns all graphics and photos pertaining to the Client itself, such as onlocation photos of their store(s) or related property, their logo, and modifications to their logo or any other content they provide (up to the point where the modifications leave the content applicable to the Client).
d.
The Client agrees that RIVER retains ownership of RIVER's base module (specifically the “base” folder of a project), including back-end code (such as PHP), and front-end code (such as Javascript, HTML).
e.
Unless agreed otherwise, this Agreement entitles the Client to one transferrable License in Perpetuity for the base module utilised for this Project.
5.

Confidentiality

a.
Prior to providing code access to any developers (whether in-house or third-party) for Projects which include RIVER's base module, the Client agrees that any developers must sign an NDA as provided by RIVER in order to protect RIVER's base module and associated IP.
b.
The Client agrees they will not pass any of RIVER's IP including but not limited to graphics, photos, and any other code/technologies used or created by RIVER for purposes of the Project, to any other developers (that are not part of RIVER) without written authorisation from RIVER, and understand there may be commercial or financial damages for doing so.
c.
RIVER agrees to keep any sensitive information or content provided by the Client strictly confidential (unless it is obliged under law to reveal such information), with the exclusion of the price and package as detailed in the Agreement.
6.

Fees, Invoicing & Payments

a.
All fees (whether fixed or variable) relating to the Project to be paid by the Client are set out in the Agreement for the Client, and are exclusive of both GST, and fees for additional services outside of the scope of the Project unless otherwise stated. RIVER agrees to abide by all fixed fees agreed upon in the Agreement while working on the Project within scope, though reserves the right to review and update variable fees from time to time.
b.
RIVER may charge the Client expenses incurred in relation to the Service, including all reasonable out-of-pocket costs (such as airfare, hotel, car rental and copying of documents).
c.
Unless agreed otherwise, a minimum deposit of 10% of the total Project fees is required for RIVER to begin work on the Project, with periodic balance instalments to be paid in advance for each phase of the Project to be completed. RIVER also requires all fees for the Project be paid in full before the Client's Online Service(s) is launched live and uploaded online, unless otherwise agreed.
d.
The Client may be required to pay a retainer for RIVER's performance of ongoing Services such as hosting. RIVER will determine the retainer amount and scope of work in agreement with the client as needed.
e.
If payments are not made to RIVER within 7 days of an invoice, unless otherwise stated or agreed, RIVER has the right to stop all work immediately and obtain full ownership of the Project and all related content which RIVER is, and has been, working on for the Project, with all collection costs added to the balance.
f.
Any fees not paid to RIVER by their due date are subject to late penalties, and RIVER has the right to take further actions to claim said funds.
g.
Unless agreed otherwise, all hosting fees are to be paid one (1) month in advance, with the charge for a month of hosting occurring at the beginning of said month. If the Client is more than one (1) month behind hosting payments, RIVER has the right to discontinue hosting of the Clients Online Service(s) until all bills (including those to be paid in advance) are paid in full. RIVER also has the right to bill in arrears for any additional hosting or service costs that occur during a period of hosting.
h.
Development projects are developed to be compliant with the latest mainstream (standards compliant) web browsers at the time of launch of any Online Services, and the Client agrees to pay additional funds to increase development compatibility or performance.
i.
The Client agrees that service charges (such as hosting) may vary without notice (for services not yet consumed). Such changes in charges will be a direct reflection or result of costs passed onto RIVER by their various suppliers, and the client will be notified accordingly.
7.

Disputes

a.
If any dispute arises relating to, or in connection with, the Agreement which both Parties are unable to resolve through their respective CEOs (or equivalent positions) within 30 days of the dispute arising, then the dispute shall undergo a 30 day period of mediation. After this further 30 days, if the matter has not yet been resolved it shall be referred to the arbitration of a single arbitrator (unless both parties have reached an agreement). Such arbitration shall be carried out in accordance with the provisions of the Arbitration Act 1996.
8.

Limited Liability

a.
The Client agrees that RIVER is not liable to the Client or any other Party for any failure to provide full online coverage, internet coverage, email services, or any other third party service, whether arising from a Service Provider, failure with the Network, a failure due to actions of the Client (such as delayed payments, inappropriate or missing content), or otherwise.
b.
The Client agrees that RIVER shall not be liable in any way for any damages, loss of business, or any other effects or losses due to clause 7 (a) above, whether directly attributable or incidental to such action.
c.
The Client agrees to indemnify RIVER against any claim or legal action resulting from the content of the Clients Online Services, or any other actions of the Client.
d.
RIVER agrees to indemnify the Client against any claims or legal action taken against RIVER not relating to the Client.
9.

Term & Termination

a.
By signing this Agreement, the Client signifies their unconditional agreement to all terms and clauses as stated within this Agreement and in accordance with any associated documentation. This Agreement shall be valid as long as the Client is in any form of business with RIVER, which includes on-going hosting, or the Client's using of content created or used by RIVER for the Project.
b.
Either Party can terminate this Agreement on reasonable grounds by providing one (1) month written notice not in violation of Clause 3, 4 and 5 above (ie, if the Client is using content created or used by RIVER for the Project). The Client agrees that upon their voluntary termination of this agreement, RIVER has no obligation to provide the Client with any content relating to their Project, nor refund any deposit(s) paid to RIVER for the Project.
c.
Upon termination of this Agreement for any reason, the Client agrees to abide by Clauses 4, 5, and 6, in that they will not provide any of the back-end code or content created or used by RIVER at any date to any outside parties without written consent.
d.
Schedules are based on timely communication, and any delays in feedback, content, or payment will cause a delay in project completion and adjustment of the enclosed project plan. Any additional ideas or requests from either party will be noted for future updates to continually improve the Online Service(s) over time, and will incur additional fees accordingly.
10.

Acceptance

a.
The Client and RIVER have caused this Agreement to be executed by their duly authorised representatives. All terms and conditions of the Agreement, unless specifically amended herein, shall remain in full effect.

Last Updated: 13 November, 2017