Personal Small Business Medium and Enterprise Business

SoW Terms and Conditions

1. Introduction

These terms and conditions (“SOW Terms”) apply to Statements of Work that Spark New Zealand Trading Limited (“Spark”, “we” or “us”) enters into with you (“Customer”, “you” or “your”) for the supply of Services, Products, and Deliverables as a Project. The specific scope and requirements for each Project, including any applicable Products, Services and Deliverables, are set out in the Statement of Work. The General Terms of your Spark Business Agreement also apply.

If there is any conflict between the different parts of the Statement of Work, the following order of precedence applies:

  1.     the Statement of Work;
  2.     these SOW Terms; and
  3.     the General Terms.

2. Term and Project Start Date

The Statement of Work commences on the date it is signed by both parties (“Start Date”) and, unless earlier terminated in accordance with the Statement of Work, will continue until the End Date, unless extended by the parties’ written agreement.

The Project will have a lead time of up to 20 Business Days after the Start Date. We will notify you in writing (with email being acceptable) when the Project will commence.

3. Scope

3.1 In scope activities

We will:

  1.     supply any agreed Products and Deliverables;
  2.     perform the Services;
  3.     provide any agreed reports and other documentation;
  4.     meet with you as agreed to discuss progress of the Project;
  5.     action any agreed Change Requests; and
  6.     perform any further activities set out in the Statement of Work.

3.2 Out of scope

Unless expressly stated in the Statement of Work, the following work is out of scope:

  1. supply, installation or configuration of Your Environment;
  2. supply, installation or configuration of software and software features not included in the Products, Services or Deliverables;
  3. backup or migration of existing data, content, software or applications;
  4. integration of other applications not included in the Product, Services or Deliverables;
  5. training, user manuals and documentation not specified as part of the applicable Service, Product or Deliverable;
  6. creation and implementation of user acceptance tests and test plans;
  7. Project management activities except as expressly stated in the Statement of Work;
  8. ongoing support and maintenance of the Services, Products or Deliverables; and
  9. any services, products or deliverables not expressly stated in the Statement of Work.

4. Assumptions

4.1 Assumptions

Unless otherwise expressly stated in the Statement of Work, each Statement of Work is developed based on the following assumptions (“Assumptions”):

  1. you have disclosed all relevant information that could impact  our ability to accurately determine timeframes, calculate Fees or otherwise provide the Services, Products and Deliverables;
  2. you will provide administration and other support for your Personnel and end users, and be responsible for all communications with your Personnel and end users;
  3. you will provide administration and other support for our Personnel providing Resource Augmentation Services
  4. your requirements for the Services, Products and Deliverables will not change from those set out in the Statement of Work other than in accordance with the Change Request process;
  5. you will be responsible for protecting your own data, content and software, including performing backups for any parts of Your Environment involved in the Project;
  6. you will not change or alter Your Environment during the Project such that it is no longer suitable for the Products, Services or Deliverables;
  7. all Fees related to the Services, Products and Deliverables are estimates only;
  8. we will perform and supply the Services, Products and Deliverables based on information reasonably available to it at the time we enter into the Statement of Work;
  9. any pre-requisites or dependencies identified in the Statement of Work will be completed by you in a timely manner so that we can perform and supply the Services, Products and Deliverables without delays or adverse impacts to the Project; and
  10. any other assumptions stated in the Statement of Work.

4.2 Incorrect assumptions

If any of the Assumptions prove to be incorrect:

  1. either party may raise a Change Request to address any changes reasonably required to the Services, Products, Deliverables, Milestones, Fees and other aspects of the Statement of Work; and
  2. we will be relieved of our obligations under the Statement of Work to the extent that we are prevented from performing those obligations due to that incorrect Assumption.

5. Risks

A Statement of Work may identify specific risks that may impact the delivery of the Services, Products or Deliverables, or may impact Milestones, Fees or other aspects of the Statement of Work. If either party becomes aware of any such risk happening:

  1. it will promptly notify the other party;
  2. either party may raise a Change Request to address any changes reasonably required to the Services, Products, Deliverables, Milestones, Fees and other aspects of the Statement of Work; and
  3. we will be relieved from our obligations under the Statement of Work to the extent we are prevented from performing those obligations due to that risk happening.

6. Our responsibilities

6.1 Responsibilities

We shall perform the Services and provide the Products and Deliverables and otherwise perform its obligations in accordance with the Statement of Work using reasonable care and skill using suitably qualified Personnel.

7. Your responsibilities

You must do all of the following, as reasonable required to enable us to perform our obligations under the Statement of Work:

  1. provide reasonable information, co-operation and assistance to us and our Personnel on request;
  2. make suitable Personnel available to us, ensure that they attend meetings, answer questions, provide information, make decisions in a timely fashion and ensure that any information they provide to us is accurate, up-to-date and complete;
  3. ensure Your Environment is suitable for us to provide the Services, Products and Deliverables and, where reasonably required by us, prepare the Your Environment for receipt and installation of the Services, Products and Deliverables;
  4. ensure that we are given access to the sites and Your Environment for the purpose of enabling us to perform its obligations under the Statement of Work during business hours and at such other times outside business hours as are agreed between you and us; and
  5. comply with any of your other responsibilities stated in the Statement of Work.

8. Fees and payment

Where a Statement of Work specifies that a Service, Product or Deliverable will be provided on:

  1. a fixed fee basis, we will charge a fixed Fee for that item; or
  2. an estimated or time and materials basis, any estimate is provided for information only and we will charge time and materials Fees for the Service, Product or Deliverable at the rates specified in the Statement of Work (or our standard rates, if no such rates are specified).

Unless otherwise expressly stated in the Statement of Work, payment of Fees is not conditional on acceptance of Services, Products or Deliverables.

9. Project leads

9.1 Appointment

Each party will appoint a Project lead who is authorised to act on its behalf. The parties may change their representatives by notice in writing to the other party.

9.2 Authorisation

Each party’s Project lead is authorised to act on behalf of and bind their party regarding any and all matters relating to the performance of the Statement of Work.

9.3 Meetings

The Project leads shall meet at a mutually agreed frequency to discuss the Project and each other’s performance of its obligations under the Statement of Work. Our Project lead will maintain an issues register for the Project and the Project leads will work together to discuss and resolve any identified issues.

10. Milestones

10.1 Obligation to meet Milestones

Each party will endeavour to meet its Milestones on or before any applicable Milestone Date. If either party believes for any reason it is unlikely that a Milestone will be achieved by the Milestone Date, it may notify the other party and propose a Change Request to vary the Milestone Date (and subsequent Milestone Dates) to reflect the revised circumstances. The other party shall not unreasonably withhold its acceptance of such Change Request.

10.2 Remedies for delay

To the extent that any Milestone is not met by the Milestone Date as a result of:

  1. any delay, failure, act or omission by you or your Personnel, or due to any other circumstance outside of our reasonable control, the affected Milestone Dates will be extended by the period for which that delay, failure or circumstance was in effect, and you will pay any additional Fees that we reasonably apply for that period; and
  2. our delay, failure, act or omission, we will use commercially-reasonable efforts to achieve that Milestone as soon as reasonably possible after the Milestone Date and without charging you additional Fees.

11.    Change requests

11.1    Change requests

Either party may submit a request to the other party in a form supplied to us for changes to the Services, Product, Deliverables or other aspects of the Statement of Work (each a "Change Request"). Where a Change Request is submitted:

  1. the Change Request will contain the reason for the change, an outline of the change and any other information reasonably required for the other party to consider the request;
  2. the parties will promptly discuss and agree the Change Request, including any changes to the Services, Products, Deliverables, Milestones, Milestone Dates, Fees, Assumptions, Out of Scope Items and other aspects of the Statement of Work;
  3. once both parties sign the Change Request, the Change Request is treated as agreed and the Statement of Work is amended to reflect the terms of the Change Request;
  4. until the Change Request is agreed, the Statement of Work continues in force unchanged;
  5. subject to clause 11.1(g), a party may reject a Change Request if it reasonably considers the change would adversely affect the Services, Products, Deliverables or Your Environment, or the change is not technically or commercially feasible;
  6. if we identify a Change Request as critical, you must give us an opportunity to propose an alternative solution before rejecting the Change Request; and
  7. you will not unreasonably withhold, delay or condition your agreement to any Change Request raised under clause 4.2(a).

11.2    Minor changes

We may agree minor Statement of Work changes with you in writing by email without a formal Change Request, provided that they do not impact the total Fees for a Statement of Work by than the threshold specified in the Statement of Work (or 5% of the estimated Fees if no threshold is specified). We may require a formal Change Request if we reasonably consider a change will materially impact the time, costs or quality of the Project or the combined effect of minor changes for the Project would exceed the threshold.

12.    Acceptance testing

Where a Statement of Work specifies that Acceptance Testing will be conducted for a Service, Product or Deliverable:

  1. we will agree an Acceptance Testing plan with you to confirm that the Services, Products or Deliverables meet any requirements as set out in the Statement of Work or, if no Acceptance Testing plan is agreed, we will reasonably determine an Acceptance Testing plan that addresses all material features of that Service, Product or Deliverable, as specified in the Statement of Work;
  2. when the Services, Products Deliverables are ready and available for Acceptance Testing, we will notify you in writing and the Acceptance Testing Period will start from the date of our notice;
  3. unless otherwise agreed in the Acceptance Testing plan, you will complete the Acceptance Tests in the presence of our chosen Personnel during the Acceptance Testing Period and notify us that the Service, Product or Deliverable has either passed or failed the Acceptance Tests within 5 Business Days of completing the Acceptance Tests;
  4. you will be considered to have Accepted the Service, Product or Deliverable if you:
    1. confirm the Service, Product or Deliverable has passed the Acceptance Tests in accordance with clause 12(c);
    2. do not complete the Acceptance Testing by the end of the Acceptance Testing Period;
    3. do not confirm whether the Services, Products or Deliverables have passed or failed the Acceptance Tests within the timeframe specified in clause 12(c); or
    4. use the Service, Product or Deliverable in a live production environment other than for Acceptance Testing purposes;
  5. the Service, Product or Deliverable will not fail any Acceptance Test to the extent that such failure relates to any change to Your Environment, any damage or modification to the Service, Product or Deliverable by you or your Personnel, any Assumption proving to be incorrect or any minor defect which does not materially affect the performance or functionality of the Service, Product or Deliverable;
  6. if the Service Product or Deliverable fails any Acceptance Test, you will include reasonable information with your notification under clause 12(c) identifying any particular failures, and we will promptly rectify such failures at our own expense before resubmitting the Service, Product or Deliverable for re-testing under clause 12(b);
  7. if a Service, Product or Deliverable does not pass Acceptance Tests after the third time the Acceptance Tests have been carried out, you may agree to:
    1. allow us a further opportunity to rectify any remaining Acceptance Test failures in accordance with clause 12(f);
    2. accept all or part of the Service, Product or Deliverable subject to a reasonable Fee reduction agreed by the parties, acting reasonably and having regard to the nature and severity of the failure; or
    3. accept all or part of the Service, Product or Deliverable subject to other reasonable conditions agreed by the parties, acting reasonably and having regard to the nature and severity of the failure, provided that, if the parties are unable to reach agreement within 30 days, (ii) above will apply.

13.    Warranty

13.1    Warranty period

Subject to clause 13.2, we warrant that under normal use in accordance with the Statement of Work, the Services, Products and Deliverables will meet the requirements as set out in the Statement of Work and will be free of Warrantable Defects during the Warranty Period. If you notify us in writing of a potential Warrantable Defect during the Warranty Period, we will:

  1. investigate and confirm whether it is a Warrantable Defect; and
  2. promptly rectify any confirmed Warrantable Defect (which may involve re-performing the affected Services, or correcting the affected Products and Deliverables, or replacing them in whole or part with a reasonable substitute that still meets the requirements set out in the Statement of Work) at our cost and to your reasonable satisfaction.

Correction or replacement of the affected Service, Product or Deliverable under this section 13.1 will be your sole remedy.

13.2    Warranty exclusions

The warranty set out in clause 13.1 does not apply to, and we will not be liable to you for any failure, defect or damage caused by any:

  1. Third Party Products, which will only have warranties (if any) that are directly provided by the Third Party Product provider pursuant to any applicable written manufacturer’s warranty or Third Party Product Terms;
  2. breach of this Statement of Work by you or your Personnel;
  3. use of the Service, Product or Deliverable in a manner prohibited by or otherwise not reasonably contemplated by the Statement of Work;
  4. ordinary wear and tear by you or your Personnel;
  5. misuse, abuse, neglect or improper storage, handling or use of a Product or Deliverable by you or your Personnel;
  6. failure to follow any installation, operating or maintenance instructions provided by us or a Third Party Product provider to you in writing (including subjecting a Product or Deliverable to unsuitable power sources or environmental conditions);
  7. modifications made to the Service, Product or Deliverable by you or your Personnel;
  8. item or materials furnished by you or your Personnel;
  9. incorrect information provided by you or your Personnel; and
  10. circumstances that are otherwise outside of our reasonable control.

14.    Intellectual property

14.1    Ownership

Unless otherwise specified in the Statement of Work:

  1. each party will retain all Intellectual Property Rights that it owned as at the date of the Statement of Work or developed independently of the Statement of Work, including any modifications (Pre-Existing IP); and
  2. we will solely own all Intellectual Property Rights which are created in connection with, or as a result of, providing the Services, Products and Deliverables to you or otherwise performing this Agreement, including any modifications (New IP).

14.2    Licence

Unless otherwise specified in the Statement of Work:

  1. you grant us a revocable, non-exclusive, royalty-free and non-transferrable licence for the term of the Statement of Work to use, reproduce, communicate and adapt your Pre-Existing IP to the extent necessary for us to provide you the Services, Products or Deliverables under the Statement of Work; and
  2. on payment of all applicable Fees for each Product or Deliverable, we grant you a non-exclusive and non-transferable licence to use any of our Pre-Existing IP and New IP that is incorporated into that Product or Deliverable, solely for your own internal business use and for the purposes of possessing and operating that Product or Deliverable in accordance with and in the manner contemplated by the Statement of Work.

15.    General

15.1    Compliance with laws

Each party shall, in performing its obligations under and in connection with Statement of Work, comply with all relevant legislation and other laws.

15.2    Costs

Each party shall bear its own costs in respect of the preparation and negotiation of the Statement of Work.

15.3    Amendments

No modification, variation or amendment of the Statement of Work, including these SOW Terms, shall be of any force or effect unless such modification, variation or amendment is in writing and has been signed by both parties.

15.4    Entire agreement

The Statement of Work (including these SOW Terms) and any documents attached to or referred to in the Statement of Work contain the entire understanding between you and us concerning the Project and supersedes all previous agreements and understandings between the parties with respect to the Project.

16.    Definitions

The capitalised terms in the SOW Terms have the following meaning or, if no meaning is stated below, the meaning given to them in the General Terms:

  1. “Accept” and “Acceptance” means your acceptance of Service, Product or Deliverable in accordance with clause 12(d).
  2. “Acceptance Test” means an acceptance test for a Service, Product or Deliverable (or a set of Services, Products or Deliverables) as set out in the acceptance Testing plan.
  3. “Acceptance Testing Period” means the period specified as such in the Project plan (or, of no such period is specified, 10 Business Days).
  4. “Assumption” has the meaning given in clause 4.1.
  5. “Change Request” means a request submitted by one party to the other in a form supplied by us for changes to the Services, Products or Deliverables or other aspects of the Statement of Work.
  6. "Deliverables" means the deliverables stated in the Statement of Work.
  7. “End Date” means the date specified as such in the Statement of Work (or, if no such date is specified, the date on which we have completed supplying the agreed Services, Products and Deliverables under that Statement of Work.
  8. "Fees" means the amounts identified as being payable for the Project as stated in the Statement of Work and includes any applicable goods and services or similar taxes.
  9. "General Terms" means the General Terms set out in your Spark Business Agreement or, if you do not have a signed Spark Business Agreement, the General Terms at https://www.sparkdigital.co.nz/support/general-terms
  10. "Intellectual Property Rights" means all intellectual property rights, including the following rights (present or future) in:
    1. patents, copyright, rights in circuit layouts, registered and unregistered designs, trade marks, domain names, business names and trade secrets;
    2. formulae, methods, plans, data, drawings, specifications, inventions, discoveries, improvements, know-how, experience, software, price lists, costings and related material; and
    3. any application or right to apply for registration or protection of any of the rights referred to in paragraph (a) or (b).
  11. "Milestone" means an event or task described as such in a Statement of Work.
  12. “Milestone Date" means the target date for completion of a Milestone, as set out in the Statement of Work.
  13. "Personnel” means the agents, officers, employees and contractors of each of us (and, where relevant, Spark Group Members).
  14. “Project” means the project which is the subject of the Statement of Work under which we are supplying Services, Products and Deliverables.
  15. "Spark Group Member” means each of our related companies, as that term is defined in the Companies Act 1993.
  16. “Start Date” has the meaning given to it in section 2 of these SOW Terms.
  17. “Statement of Work” means a document (including any attachments to that document), in the form provided by us, which describes the Services, Products or Deliverables that we will supply to you in relation to a Project pursuant to these SOW Terms.
  18. “Third Party Products” means any third party product, including any Third Party Software or a third party cloud service, and includes any such products that may be supplied to you under the Statement of Work or your Spark Business Agreement.
  19. “Third Party Product Terms” means any end user licence terms and other terms and conditions imposed by the Third Party Product provider, as imposed by the Third Party Product provider as a condition of you receiving or accessing that Third Party Product.
  20. “Third Party Software” means software that is licensed to you by a third party.
  21. "Warrantable Defect" means any defect in materials or workmanship of a Service, Product or Deliverable which causes the Service, Product or Deliverables to materially fail to meet the requirements as set out in the Statement of Work, is discovered after Acceptance that could not have reasonably been discovered during Acceptance Testing.
  22. "Warranty Period” means the warranty period for a particular Service, Product or Deliverable (or set of Services, Products or Deliverables), as specified in a Statement of Work (or if no such period is specified, 90 days from the date on which that Deliverable is Accepted).
  23. "Your Environment" means Your Equipment, together with any software, hardware, connectivity, systems, facilities and networks owned or used from time to time but excluding any Services, Products or Deliverables.
  24. “Your Equipment” means all IT and telecommunications hardware or related equipment owned or leased by you, including equipment that we use in connection with supplying the Products or Services, but excluding software that we make available to you, Our Equipment, Services and Products.