TERMS & CONDITIONS

App Development

These terms may be updated from time to time at the Developer’s sole discretion.

Version 1.1.1

1. Definitions & Interpretations

Client: means the Individual, Partnership or Company that has signed the Agreement with the Developer

Developer: Point Zero Limited or HoloSpace Pty Limited

App: means the mobile phone software application

Agreement: The Proposal or quote document signed by the Client.

this Agreement: refers to the signed Agreement between the Client and the Developer and its specified terms and conditions.

Requirements: this will define the scope of the project and include any required tasks. Anything not defined in this section will be considered Out of scope.

Deposit/upfront payment: the payment to be made by the Client to the Developer upon signing of this Agreement

Final Build: refers to the final software build. This is the file or files created in the compilation process, where source code files are converted into executable code.

Source Code: a text listing of commands to be compiled or assembled into a software build forming an executable computer program.

Business Day: a day on which banks are open for business, excluding a Saturday, Sunday or public holidays in Wellington or New Zealand

Start Date: the date that the Agreement has been signed

Minimum Term: 24 Months, unless stated otherwise in this Agreement

Fees: means the fees payable by Client to the Developer as specified in this Agreement

Out of scope: A task, request or feature that the Developer is not obligated to fulfil as part of this Agreement.

Default Interest: interest that accrues on overdue payments

Default Rate: fifteen per cent per annum (15%)

Timeframe: The estimated time it will take the Developer to complete the project.

Delivery: Upon Completion, the Developer will deliver the Final Build of the App to the Client

2. Authority to Enter Agreement

         2.1 Authority to Enter Agreement: Each of the parties represents and warrants that:

                  2.1.1 authority: it has full power and authority to enter into and perform its obligations under this Agreement;

                  2.1.2 authorisations: it has taken all necessary action to authorise the execution, delivery and performance of this Agreement in accordance with its terms;

                  2.1.3 binding obligations: this Agreement constitutes legal, valid and binding obligations and is enforceable in accordance with its terms; and

                  2.1.4 transaction permitted: the execution, delivery and performance by it of this Agreement does not and will not violate:

                           2.1.4.1 to the best of its knowledge and belief, any law, regulation, authorisation, ruling, consent, judgment, order or decree of any governmental agency; or

                           2.1.4.2 its constitution or other constituent documents.

3. Nature of relationship

Independent Contractor Status. The Developer agrees to perform the Services herein solely as an independent contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. The Developer is and will remain an independent contractor in its relationship to the Client. The Client shall not be responsible for withholding taxes with respect to the Developer’s compensation hereunder. The Developer shall have no claim against the Client herein or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party and a third party.

4. No Conflict of interest; Other Activities

The Developer hereby warrants to the Client that, to the best of its knowledge, it is not currently obliged under any existing contract or other duty that conflicts with or is inconsistent with this Agreement. During the term, the Developer is free to engage in other development activities; provided, however, the Developer shall not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Developer's obligations or the scope of Services to be rendered for the Client pursuant to this Agreement.

5. Intellectual Property Rights

         5.1 The Client will acquire full intellectual property rights to the final software package (the Final Build) provided by the Developer once the product is paid in full (excludes preliminary work). Until receipt of all payments in full, the Developer retains all intellectual property rights to the software. On receipt of all payments in full the final software package will made available for download for 7 days via a Google Drive link.

         5.2 The Developer will retain rights to their own work so that portions of the developed software which relate to the Developers work can be reused in future software.

         5.3 The Client agrees that the Developer has the right to display the work in its company portfolio.

6. Project Management

         6.1 Project Methodology. Progress meetings will be held at crucial development stages to ensure the project is completed on schedule.

         6.2 Confidentiality

The Developer agrees to keep this project confidential unless otherwise agreed in advance and in writing by the Client. The Developer undertakes to hold and maintain in strict confidence any confidential information that the Client provide us (such as proprietary technical or business information), and the Developer will not disclose any such information to any third party.

         6.3 Timeframe:

                  6.3.1 The Developer will do its best to complete the App within the estimated timeframe

                  6.3.2 The timeframe will commence from the date the first payment has been made in full by the Client.

         6.4 Client responsibilities.

                  6.4.1 Providing. The Client will be responsible for providing:

                           6.4.1.1 All the necessary content for the App, as well as any information that is required by the Developer during the design, development and publishing process.

                           6.4.1.2 Feedback and guidance during the design, development and publishing process.

                           6.4.1.3 Payment of all Fees in full and on time.

                  6.4.2 Ownership. The Client will:

                           6.4.2.1 not hold itself out as an agent, partner or joint venturer of the Developer;

                           6.5.2.2 not copy or purport to sell any part of the Software to any third party without the Developer’s consent

                  6.4.3 Software. The Client will:

                           6.4.3.1 use reasonable endeavours to ensure that the Software remains free of bugs, viruses, malware, spyware, trojans and disabling code;

                           6.4.3.2 promptly install any updates to software provided by the Developer in accordance with all reasonable instructions; and

                           6.4.3.3 not disassemble, deconstruct, reverse engineer or otherwise replicate the Software or any part of the Software, or attempt to do any of these things, and shall procure that its employees and contractors do not do the same

                  6.4.4 If the Client Fails to fulfil their responsibilities, the Developer will no longer be required to complete the related Developer’s requirements. This does not reduce or change the Fees owed by the Client in any way whatsoever, unless agreed in writing by the Developer.

         6.5 Language support. The Developer will build the App to meet New Zealand English specifications. All text in the App is to be provided and reviewed by the Client.

         6.6 Other Languages. If other languages are to be added, a new Agreement will be required unless stated in the requirements.

7. Project Requirements

         7.1 Acknowledgement. The Client acknowledges that:

                  7.1.1 any and all Intellectual Property Rights used or embodied in or in connection with the Source Code and Proprietary software (including the specifications) are and will remain the sole property of the Developer, and the Intellectual Property Rights in any modifications or additions arising out of, or related, will belong to the Developer;

                  7.1.2 the Client will have no claim to the Developer’s Intellectual Property Rights and no licence to use the Developer’s Intellectual Property Rights except as necessary to give effect to this Agreement; and

                  7.1.3 the Intellectual Property Rights, knowledge or know-how at any time transmitted orally, electronically or in writing by the Developer to the Client will be considered absolutely confidential by the Client and the Client will not use them for any purpose nor sell, transfer or divulge them to anyone without the Developer’s prior written consent.

         7.2 Grant of licence: Subject to the Client complying with all its obligations, the Developer grants to the Client a non-transferable, revocable licence to use the Intellectual Property Rights solely for the purposes of using the software during the Term as part of the Clients’s business.

8. Liability

         8.1 Limitation on liability. The Developer will not be liable:

                  8.1.1 for loss due to the fact that the Client has altered or misapplied the software, or has subjected the software to any unusual or non-recommended use, servicing or handling;

                  8.1.2 for loss due to the App being delivered after the estimated timeframe specified in the Agreement

                  8.1.3 for loss caused by any factors beyond the Developer’s control

                  8.1.4 for any indirect loss or any consequential loss suffered or incurred by the Clients, or for any loss of income, business, profit or savings whether as a result of the Clients’s or any other person’s inability to complete a transaction or order or otherwise;

                  8.1.5 where the loss sustained is due to non-compliance by the Client with the terms of any documentation or written communication provided to the Client;

                  8.1.6 where the Client has not taken all reasonable steps to mitigate any loss, liability, or other damages it suffers as a result of a breach of this Agreement by the Developer; or

                  8.1.7 where the Client has not informed the Developer of a breach of this Agreement as soon as reasonably practicable after the Client becomes aware of that breach.

         8.2 Maximum liability: The total liability of the Developer under or in relation to the Agreement will not exceed an amount equal to the total Fees paid by the Client under this Agreement.

9. Publishing Fees

         9.1 The Client is required to pay all Fees required to publish the App on Apple and Android.

         9.2 Store fees must be paid yearly and before the time of renewal to ensure the App will stay active on each publishing platform.

         9.3 These stores can require additional information such as descriptions, promotional imagery and additional verification to be listed under specialist categories. If required the Client will be required to provide this information

         9.4 The App stores are 3rd party providers and publish apps at their own discretion through their own independent review process. Due to this:

                  9.4.1 Fees are subject to change - if these fees change at any time, the Client will be required to pay this cost

                  9.4.2 Point Zero is not responsible for ensuring the app is approved by the app stores

         9.5 Publisher: The App will be published under the “Point Zero” developer accounts.

10. User Testing Policy

The Developer will require feedback from the Clients in order to improve the product. The Client will be responsible for providing subject matter experts. And conducting user testing sessions.

11. Post-Release Policy

         11.1 Maintenance. Maintenance after the work is completed is required to ensure that all aspects of the software will continue to function correctly with software platform upgrades and alternative mobile devices. This is out of the scope of this Agreement unless stated in the requirements.

         11.2 Bug-fixing. The Developer agrees that, if a critical bug is discovered post-release that prevents the App from completing the requirements specified in this Agreement regularly, this should be treated as a case of improper implementation and this critical bug will be corrected without requiring further contractual Agreement or payment from the Client.

         11.3 If a minor bug is discovered post-release that does not always prevent a user from completing a requirement outlined in this Agreement, it is at the Developer’s discretion to either:

                  11.3.1 Correct the bug at no further charge to the Client, or

                  11.3.1 Consider this work as maintenance and charge on a time and material basis

         11.4 Improper Implementation. When the Developer delivers the Final Build to the Client and completes the work for the Client under this Agreement, the Client agrees to test the software in its entirety to determine if the Developer has completed the work that was promised. The Client undertakes to inform the Developer in writing within fifteen (15) calendar days after the Developer delivers the Final Build, whether the Client accepts or rejects the Final Build. If the Client rejects the Final Build, the Developer will correct any errors, and then re-deliver the Final Build to the Client to accept or reject the corrected deliverable – The Client undertakes to do so within fifteen (15) calendar days after they receive the corrected deliverable. This process shall continue until the Client accepts the deliverable or 15 calendar days have passed and the Developer's obligations for this phase of the project will have been fully satisfied. Finally, the Client has a limit of two (2) fifteen (15) calendar day periods at which point the Agreement is deemed to be completed.

         11.5 Future Development. The Client agrees that the Fee payable to the Developer will cover in full all of the work listed in this Agreement. The Client agrees that if changes are requested under this Agreement or work commissioned this is not covered by this Agreement, a new Agreement will be required in addition to all other amounts owed by the Client under this Agreement.

12. Technical Implementation

         12.1 App will be developed in C# using the Unity Software Platform and exported for iOS (Apple) and Android software platforms.

         12.2 Third-Party Policy. The Developer will be responsible for ensuring that they are permitted to use any third-party libraries that are implemented into the project.

         12.3 System Requirements. The Developer will aim to support the following minimum system requirements for mobile devices:

Android

• CPU: Snapdragon 820/Exynos 8890
• Android™ 8.0 and above
• Storage 32 GB
• RAM: 4GB.

Apple

• iPhone 7+
• Apple iPad (7th gen)
• iOS 12.1 or later

13. General

         13.1 Amendment: No amendment to this Agreement will be effective unless it is in writing and signed by each party.

         13.2 Entire agreement: This Agreement is the entire Agreement between the parties and supersedes all earlier conduct and prior Agreements, representations and understandings between the parties in connection with its subject matter.

         13.3 Further Assurances: Each party must do all things and execute all further documents necessary to give full effect to this Agreement.

         13.4 Governing law and jurisdiction: This Agreement is governed by the laws of New Zealand. Each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of New Zealand.

         13.5 No assignment: The Clients may not assign any of its rights or obligations under this Agreement without the prior written and signed consent of the Developer.

         13.6 No partnership/agency: Nothing contained in this Agreement will be deemed or construed to constitute any party to be a partner, agent, or representative of any other party, or to create any trust or commercial partnership.

         13.7 No waiver: No exercise or failure to exercise or delay in exercising any right or remedy by any party will constitute a waiver by that party of that or any other right or remedy available to it.

         13.8 Termination: The clauses that by their nature are intended to survive the termination of this Agreement survives the termination or expiry of this Agreement for any reason whatsoever.

         13.9 Use Of Logo / Brand: The Company grants the Developer permission to use the Company's name, logo and brand for their own promotional or marketing materials.

         13.10 No merger: The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.

         13.11 Source Code: Source code used to create the software and its intellectual property is owned by the Developer and will not be provided to the Client.

14. Payments

         14.1 Payments terms for this Agreement will be 50% upfront deposit and 50% on completion unless stated otherwise. The 50% upfront deposit payment is non-refundable. 

         14.2 Server Fees and Hosting Fees: due 1 year in advance on the date this Agreement is signed by the Client. Standard hosting will be charged at $40.00 + GST NZD per month unless stated otherwise in a signed agreement (this agreed value will supersede the amount specified here) - Maximum data usage applies, the Client will be advised by the Developer if these are exceeded. These fees are required for the mobile app to continue to run as outlined in the agreements signed. 

         14.3 3rd Party applications or services: due 1 year in advance on the date this Agreement is signed by the Client

         14.4 Currency: All Fees are in New Zealand Dollars ($NZD) unless stated otherwise

         14.5 Conversion rate: If Fees due are in a currency other than $NZD, these Fees will be converted to ($NZD) at the exchange rate on the day the invoice is issued by the Developer.

         14.6 Payment: The Client must pay all Fees due under this Agreement as invoiced by the Developer on or before the date due.

         14.7 Cost increases: At any time, and from time to time, the Developer may increase the amount of the Fees by such amount necessary to recover any increase incurred by or arising from changes in statute, regulation, taxes or customs duties during the Term.

         14.8 Default: If the Client does not pay any Fees  due under this Agreement within 30 days of the invoice due date, then without prejudice to any other remedies available to the Developer:

                  14.8.1 The Developer may, terminate the Agreement and take possession of the App and all associated intellectual property

                  14.8.2 The Developer can on-sell or repurpose the App for another 3rd party/ potential buyer

                  14.8.3 The Developer no longer needs to comply with confidentiality restrictions. This includes but is not limited to clause 6.2 and any other confidentiality restrictions agreed to by the Developer  

                  14.8.4 Default Interest will accrue on any unpaid amounts on a daily basis at the Default Rate (compounding monthly), from such time as the amount falls due until all overdue amounts have been paid by the Client in full (including any Default Interest); and

                  14.8.5 the Client shall be responsible for all reasonable costs incurred by the Developer in recovering any amount outstanding, including any legal costs on a solicitor/Clients basis.

         14.9 No matter which remedy the Developer chooses to implement in clause 14.8, the full amount outlined in this contract is still owed to the Developer by the Client. This includes but is not limited to the full cost of development, server, hosting, 3rd party subscriptions, App store fees and accrued interest for the full duration of the Term.

         14.10 No set-off or deduction: The Client must make all payments due to the Developer under this Agreement free of any deduction, withholding, or set-off.

         14.11 Tax: The Fees do not include any GST, duties or other tax imposed. Any such GST, duty or tax will be added to and payable in addition to the Fees.

15. Force Majeure

         15.1 A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:

                  15.1.1 notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and

                  15.1.2 use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.

16. Dispute Resolution

         16.1 If there is any dispute between the parties they will use their best endeavors to resolve it by discussion.

         16.2 If not resolved by discussion any party may request the other party to submit the dispute to mediation by a suitably experienced and independent person either agreed upon or appointed by the President for the time being of the Wellington District Law Society.

         16.3 If the dispute is not resolved either by discussion or mediation, either party may request the dispute to be referred to arbitration by a suitably experienced and independent arbitrator to be agreed upon or appointed.

17. Termination

         17.1 Types of Termination. This Agreement may be terminated:

                  17.1.1 By either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within thirty (30) days of receipt of written notice thereof. This shall include any delays in Fees payable by the Clients.

                  17.1.2 By the Client or Developer at any time and without prior notice, if the other party is convicted of any crime or offence, fails or refuses to comply with the written policies or reasonable directives, or is guilty of serious misconduct in connection with performance under this Agreement.

         17.2 Responsibilities after Termination. Following the termination of this Agreement for any reason, the Client shall promptly pay the Developer according to the terms stipulated elsewhere in this Agreement for Services rendered before the effective date of the termination.

         17.3 The Client acknowledges and agrees that no compensation, of any nature or type, shall be payable by the Developer hereunder following the termination of this Agreement.