1.Defined terms
"POLA": Refers to POLA CREATIVE Ltd (trading as POLA DESIGN), the Party who is providing work for the Client.
"Client": Refers to the Party receiving work from POLA, generally yourself or your company.
"Agreement": Agreement refers to this general agreement between the two Parties (POLA 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 POLA.
"Party(ies)": The Party, or the Parties, refers to either POLA and/or the Client.
"Project": Refers to the job contracted out by the Client to POLA (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 POLA 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 POLA may engage.
"Network": Refers to the platforms, connections online networks that POLA 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 POLA
a. The Client engages POLA to perform, and POLA 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 POLA receives the approval for the Project and this associated Agreement from the Client, or an appointed representative.
c.The Client agrees to pay for any additional services or expenses (such as travel, consultation or design mockups) outside an initial 1 hour consultation if they choose not to engage further with POLA.
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. POLA 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 POLA within any online services
4. Ownership
a. In regards to development mapping and platform development, POLA 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 POLA, or any code employed in POLA'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 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).
d. The Client agrees that POLA retains ownership of POLA'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).
5. Confidentiality
a. Prior to providing code access to any developers (whether in-house or third-party) for Projects which include POLA's base module, the Client agrees that any developers must sign an NDA as provided by POLA in order to protect POLA's base module and associated IP.
b. The Client agrees they will not pass any of POLA's IP including but not limited to graphics, photos, and any other code/technologies used or created by POLA for purposes of the Project, to any other developers (that are not part of POLA) without written authorisation from POLA, and understand there may be commercial or financial damages for doing so.
c. POLA 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 Statement of Work, and are exclusive of both GST, and fees for additional services outside of the scope of the Project unless otherwise stated. POLA 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. POLA 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 33% of the total Project fees is required for POLA to begin work on the Project, with periodic balance instalments to be paid in advance for each phase of the Project to be completed. POLA 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 POLA's performance of ongoing Services such as hosting. POLA will determine the retainer amount and scope of work in agreement with the client as needed.
e. If payments are not made to POLA within 14 days of an invoice, unless otherwise stated or agreed, POLA has the right to stop all work immediately and obtain full ownership of the Project and all related content which POLA is, and has been, working on for the Project, with all collection costs added to the balance.
f. Any fees not paid to POLA by their due date are subject to late penalties, and POLA 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, POLA 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. POLA 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 POLA 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 POLA 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 POLA 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 POLA against any claim or legal action resulting from the content of the Clients Online Services, or any other actions of the Client.
d. POLA agrees to indemnify the Client against any claims or legal action taken against POLA 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 POLA, which includes on-going hosting, or the Client's using of content created or used by POLA 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 POLA for the Project). The Client agrees that upon their voluntary termination of this agreement, POLA has no obligation to provide the Client with any content relating to their Project, nor refund any deposit(s) paid to POLA 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 POLA 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.