Terms of Service

These Terms of Service ("Terms") constitute a legally binding agreement between you ("Client", "you", "your") and Metaphor Limited ("Metaphor", "we", "us", "our"), a company registered in New Zealand.

By accessing any of our applications or websites (metaphor.cloud), creating an account, or using any of our software or IT services (collectively, the "Services"), you agree to be bound by these Terms. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms.

These Terms, together with our Privacy Policy and any specific proposal, quote, or Scope of Work ("SOW") provided to you, form the entire agreement between you and Metaphor Limited.

Metaphor provides a range of software and information technology services, which may include, but are not limited to:

• Software as a Service (SaaS) products.
• Custom software development and integration.
• IT consulting and strategy.
• Managed IT support and infrastructure services.
• Cloud solutions and data management.

The specific details, deliverables, timelines, and fees for the Services provided to you will be outlined in a separate SOW, Service Agreement, or Order Form, which will be governed by these Terms.

• a) Account Security:
  ‍If the Services require you to create an account, you are responsible for maintaining the confidentiality of your account credentials (username and password). You agree to notify us immediately of any unauthorised use of your account.
• b) Client Obligations:
  ‍To enable us to provide the Services effectively, you agree to:Provide timely and accurate information, data, and feedback as reasonably required.Provide necessary access to your systems, personnel, and resources as outlined in the applicable SOW.Appoint a primary contact person to communicate with us and provide necessary authorisations.Comply with all applicable laws and regulations in your use of the Services.
• c) Acceptable Use:
  ‍You agree not to use our Services to transmit or store any material that is illegal, defamatory, infringing on intellectual property rights, or otherwise harmful. You may not attempt to gain unauthorised access to our systems or engage in any activity that disrupts the performance of our Services.

• a) Fees:
  ‍You agree to pay all fees as specified in the relevant SOW, Service Agreement, or subscription plan. All fees are quoted in New Zealand Dollars (NZD) and are exclusive of Goods and Services Tax (GST), unless otherwise stated.
• b) Invoicing and Payment:
  ‍For Subscription Services: Fees will be billed in advance on a monthly or annual basis, as selected.
  For Project-Based Services: Invoices will be issued according to the payment schedule outlined in the SOW (e.g., upon reaching milestones, or on a monthly basis for time and materials).
  Payment Terms: All invoices are due for payment within 14 days of the invoice date, unless otherwise agreed in writing.
• c) Late Payments: We reserve the right to charge interest on any overdue amounts at a rate of [2.5]% per month, calculated daily. We may also suspend your access to the Services until all outstanding payments are made in full.

• a) Metaphor's Pre-existing IP:
  ‍We retain all rights, title, and interest in and to all of our pre-existing intellectual property, including our software, source code, documentation, methodologies, tools, and any IP developed by us outside of a specific SOW for you.
• b) License to Use Our Software:
  ‍For any SaaS or licensed software we provide, we grant you a non-exclusive, non-transferable, revocable license to use the software for your internal business purposes for the duration of your subscription, subject to these Terms.
• c) Client's Pre-existing IP:
  ‍You retain all rights, title, and interest in and to your pre-existing intellectual property, including your data, logos, and any materials you provide to us. You grant us a non-exclusive, royalty-free license to use this IP solely for the purpose of providing the Services to you.d) IP in Custom Deliverables: For custom development work, upon our receipt of your payment in full for the relevant Services, we will assign to you the intellectual property rights in the final, custom-built deliverables as specified in the SOW. We retain ownership of all underlying tools, libraries, methods, and pre-existing code used to create the deliverables.
• d) IP in Custom Deliverables:
  ‍For custom development work, upon our receipt of your payment in full for the relevant Services, we will assign to you the intellectual property rights in the final, custom-built deliverables as specified in the SOW. We retain ownership of all underlying tools, libraries, methods, and pre-existing code used to create the deliverables.

Both parties agree to keep all non-public information received from the other party ("Confidential Information") in strict confidence. This includes business plans, client data, financial information, and technical specifications. This obligation does not apply to information that is publicly known, already in the receiving party's possession, or required to be disclosed by law. This confidentiality obligation survives the termination of this agreement.

• a) Our Warranty: We warrant that we will perform the Services with reasonable care, skill, and diligence, consistent with professional standards in the IT industry.
• b) Disclaimer: Except for the express warranty above, our Services are provided "as is". To the maximum extent permitted by law, we disclaim all other warranties, whether express or implied, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. We do not warrant that the Services will be uninterrupted, error-free, or completely secure.
• c) Consumer Guarantees Act 1993: If you are acquiring the Services for business purposes, you agree that the provisions of the New Zealand Consumer Guarantees Act 1993 do not apply to the supply of Services under this agreement.

• a) Exclusion of Indirect Damages: To the maximum extent permitted by law, neither party will be liable to the other for any indirect, special, incidental, or consequential damages, including loss of profits, revenue, data, or business opportunities, arising out of or related to this agreement.
• b) Liability Cap: Our total aggregate liability to you for any and all claims arising out of or related to this agreement (whether in contract, tort, or otherwise) will not exceed the total fees paid by you to us in the twelve (12) months immediately preceding the event giving rise to the claim.
• c) Exclusions: This limitation of liability shall not apply to a party's breach of confidentiality obligations, infringement of intellectual property rights, or in cases of fraud or wilful misconduct.

• a) Term: This agreement commences on the date you first accept these Terms and continues until terminated.
• b) Termination for Cause: Either party may terminate this agreement immediately by written notice if the other party:Commits a material breach of these Terms and fails to remedy it within 30 days of receiving notice.Becomes insolvent, enters into liquidation, or has a receiver appointed over its assets.
• c) Termination for Convenience (Subscription Services): You may terminate your subscription Services in accordance with the terms of your specific subscription plan, typically by providing at least 30 days' written notice before the end of the current billing cycle.
• d) Effect of Termination: Upon termination, you must immediately cease using the Services and pay all outstanding fees due to Metaphor. Sections 5 (Intellectual Property), 6 (Confidentiality), 8 (Limitation of Liability), and 10 (Governing Law) shall survive the termination of this agreement.

This agreement is governed by and construed in accordance with the laws of New Zealand. The parties agree to submit to the exclusive jurisdiction of the New Zealand courts. Before resorting to litigation, the parties agree to first attempt to resolve any dispute through good faith negotiations.

• a) Force Majeure: Neither party will be liable for any delay or failure to perform its obligations due to a cause beyond its reasonable control (e.g., natural disaster, pandemic, acts of government, or major telecommunications failure).
• b) Notices: All legal notices must be sent in writing to the contact addresses specified by the parties. Email notices are considered written notices.
• c) Assignment: You may not assign or transfer your rights under this agreement without our prior written consent.
• d) Severability: If any provision of these Terms is found to be unenforceable, the remaining provisions will remain in full force and effect.
• e) Changes to Terms: We reserve the right to modify these Terms at any time. We will provide at least 30 days' notice of any material changes, either by email or by posting a notice on our website. Your continued use of the Services after the changes take effect constitutes your acceptance of the new Terms.

If you have any questions about these Terms of Service, please contact us via the Contact Us page on our website