RIVER: Terms of Engagement

This agreement is between the Client and RIVER. It encompasses a work programme set forth in detail in “Scope of Work” and “Project Plan”, which is incorporated in this agreement.

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

0.

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), comprising the Terms and Engagement as defined in this agreement, in accordance with the Statement of Work provided to the Client by RIVER for the work to be undertaken on the Project.
"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 Scope of Work (whether verbal or expressly written).
"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.
1.

Engagement of RIVER

a.
The Client engages RIVER to perform, and RIVER agrees to provide, the services set out in this Statement of Work (Services) on the terms and conditions set out in these Terms of Engagement.
b.
An Agreement is formed when RIVER receives the signed Statement of Work from the Client, and consists of, (i) the Statement of Work and (ii) this Terms of Engagement (together the Agreement)
2.

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 the Project/Online Service.
3.

Ownership

a.
The client agrees that RIVER retains full ownership over any code and IP used or developed for the purpose of the Client’s Project. This includes, but is not limited to, any back-end code (such as PHP, MySQL), front-end code (such as Javascript, XML), as well as all other development technologies, coding, and graphics/photos used or created by RIVER, excluding those as referred to in Clause 4 (b) below.
b.
RIVER agrees that the Client owns all graphics and photos pertaining to the Client itself, such as on location 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).
c.
In regards to Online Services created solely for the Client, RIVER agrees that the Client has full ownership rights over the HTML pages as they appear to the public, and the Client has the right to take the HTML pages to any developer or any persons for any modifications or alterations to the front-end content as they see fit (at their own cost and consequences to the performance and/or execution of the Project), excluding anything listed under Clause 4 (a) above, and within the terms of Clause 5 (a) below.
d.
In regards to development mapping and platform development, RIVER agrees that the Client shall have full ownership of manual processes specific to the Client (such as the way they interact with their clients), though this does not give the Client any ownership or IP rights over any code developed by RIVER, or any platforms launched or hosted by RIVER, for which license fees may apply for continued use.
e.
Unless agreed otherwise, due to the nature of the code and IP used by RIVER for the purpose of the Clients Project, the Client agrees that the hosting of all Online Services shall stay with RIVER for the Client to retain any interactive functionality of the Online Services (other than the HTML pages as noted in Clause 4 (c) above). Unless explicitly stated otherwise, all hosting shall be managed by RIVER, and we require full access to a Google Analytics account collecting data for any Online Service we manage.
4.

Confidentiality

a.
The Client agrees they will not pass any of the back-end code, or any other 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. The Client also agrees that they will not use the code for any purposes other than the Online Services provided by RIVER without written permission from RIVER.
b.
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 Statement of Work provided to the Client.
5.

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 Statement of Work 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.
6.

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.
7.

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.
8.

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 the Statement of Work. 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.
9.

Acceptance

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