Standard Terms of Service

CONTRACT TERMS

  1. The Contractor is in the business of providing the Services.
  2. The Company wishes to engage the Contractor to provide the Services.
  3. This Agreement sets out the terms and conditions upon which the Contractor will provide the Services to the Company. 

THE PARTIES AGREE as follows: 

1. Interpretation and Definitions

1.1 Definitions

In this Agreement:

Agreed Form means a quote provided by the Contractor to the Company;;

Agreement means this agreement including any variations or amendments agreed to in writing by the parties. 

Business Day means any day other than a Saturday, Sunday or public holiday in Auckland, New Zealand. 

Commencement Date means the date set out in Item 3 of the Contract Particulars.

Force Majeure Event means any of the following events which are unforeseen by, beyond the control and occurs without fault or negligence by the party prevented from or delayed in performing the obligation: acts of God, earthquake, fire, flood, storm, global pandemic; war, riot, insurrection, vandalism or sabotage; strikes, labour disputes and other forms of industrial disturbance; explosion; or power shortage, breakdown of plant, machinery or equipment, and for the avoidance of doubt does not any kind of include industrial action taken by the Contractor’s Representatives;

GST means the goods and services tax imposed on the supply of goods and services in accordance with the Goods and Services Tax Act 1985.

Insolvency Event in relation to either party means anything that reasonably indicates that there is a significant risk that that party is or will become unable to pay its debts as they fall due. This includes: the suspension or cessation of its business activities; its liquidation or insolvency or a step being taken to make the party bankrupt or to wind the party up; a meeting of the party’s creditors being called or held; the party entering into any type of arrangement with, or assignment for the benefit of all or any of its creditors; the party being made subject to a deed of company arrangement; the appointment of a controller or administrator as defined in section 9 of the Corporations Act; a step being taken to have a receiver, receiver and manager, liquidator or provisional liquidator appointed to the person or any of its assets; or any other act which shows or tends to show that it is insolvent;

Intellectual Property means all present and future rights conferred under statute, common law or equity, title and interests in and to the inventions, know-how, patents, patent applications, registered and unregistered trademarks, services marks, registered and unregistered designs, look and feel, copyrights, circuit layouts, domain names, internet addresses, computer programs, confidential information, trade secrets, trade or business names, brand names and all other rights resulting from intellectual activity in, but not limited to, the industrial, scientific, literary or artistic fields;

Price means the price charged for the Services as set out in the applicable Statement of Work.

Sales Qualified Lead means a meeting that is booked for the Company by the Contractor.

SDR means Sales Development Representative.

Services means the professional services that the Contractor will provide to the Company as set out in this Agreement;

Statement of Work means a statement of work agreed to by the parties in accordance with clause 4 of this Agreement;

Specifications mean specifications for any Services as set out in a Statement of Work; and

Special Conditions means any special conditions as set out in item 6 of the Contract Particulars.

Tax Invoice has the meaning given to that term in the Goods and Services Tax Act 1985.

1.2 Interpretation

In this Agreement, except where the context otherwise requires:

  1. the singular includes the plural and vice versa, and a gender includes other genders;
  2. another grammatical form of a defined word or expression has a corresponding meaning;
  3. a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement, and a reference to this Agreement includes any schedule or annexure; 
  4. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
  5. a reference to $ is to United States Dollar currency;
  6. any consideration to be paid or provided for a supply made under or in connection with this Agreement unless specifically described in this agreement as ‘GST inclusive’, does not include an amount on account of GST;
  7. a reference to time is to the time in New Zealand Standard Time or New Zealand Daylight Savings Time (as the case may be);
  8. a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
  9. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; 
  10. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  11. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
  12. headings are for ease of reference only and do not affect interpretation;
  13. if a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly;
  14. an obligation, representation or warranty in favour of more than one person is for the benefit of them jointly and collectively; 
  15. any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
  16. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; and 
  17. if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

1.3 Precedence of Documents

In interpreting the documents that describe or set out requirements relating to the Services, the following order of precedence will apply to the extent of any inconsistency, unless otherwise specified in a SOW:

  1. the Special Conditions (if any);
  2. the other items of the Contract Particulars;
  3. the terms and conditions in the body of this Agreement;
  4. a Statement of Work; and
  5. the Schedules (if any)

2. Term

2.1 Term of Agreement

This Agreement will start on the Commencement Date and remain in force unless terminated in accordance with this Agreement.

2.2 Term of the Statement of Work

Each Statement of Work commences on the date specified in the applicable Statement of Work and continues until the earlier of:

  1. the expiry or termination of this Agreement or the applicable Statement of Work; or
  2. the completion of the Services set out in the applicable Statement of Work,

in accordance with this Agreement.

3. Supply of Services

3.1 Exclusive Appointment

The appointment of the Contractor to supply the Services is non-exclusive.

3.2 Provision of the Services

The Contractor will provide the Services to the Company on the terms set out in this Agreement and the applicable Statements of Work. 

3.3 No minimum Services

Unless expressly stated otherwise in a Statement of Work, the Company is not obliged to:

  1. acquire a minimum amount of Services from the Contractor; 
  2. acquire a minimum level of Services that attract a minimum level of charges; or 
  3. pay any minimum fee to the Contractor. 

3.4 Service Levels

The Contractor warrants that it shall perform the Services:

  1. with due diligence and care;
  2. in a good and workmanlike manner;
  3. in accordance with good industry practice; and
  4. in compliance with (and it shall procure that its representatives comply with) all relevant legislation.

3.5 Shutdown Period 

The Contractor may have a business shutdown period between Christmas and New Year.  (“Shutdown Period”).  The Contractor will advise the Company of such Shutdown Period at least 14 days in advance.  The Price will be charged on a pro rata basis on the basis of days worked only if a Shutdown Period is more than 14 days in any calendar month. 

3.6 Personnel

The Contractor may at its sole discretion determine how and by whom the Services are provided, provided they meet the requirements set out in the relevant Statement of Work.

4. Statement of Work

4.1 Preparation of Statement of Work

If requested by the Company, the Contractor must prepare and submit a suitable Statement of Work to the Company in the Agreed Form.

4.2 Content of Statement of Work

The Statement of Work must set out in specific detail:

  1. the Services that will be provided by the Contractor under the Statement of Work; and
  2. the Price for the Services specified in the Statement of Work.

4.3 No obligation to agree Statement of Work 

The Contractor agrees that the Company is under no obligation to agree to any Statement of Work and may, in its absolute discretion, reject a Statement of Work or accept a Statement of Work that is not in the Agreed Form.

4.4 Incorporation of Statements of Work into Agreement

When a draft Statement of Work has been agreed by the parties, the parties will sign the Statement of Work and the Statement of Work will be governed by the terms and conditions of this Agreement.

5. Payment

5.1 Rates and charges for Services

  1. The Company will pay the Contractor the Price for providing the Services as set out in the applicable Statement of Work. 
  2. The Price in all Statements of Work shall be adjusted on an annual basis, effective 1 April of each year, based on the December consumer price index of the preceding year published by the New Zealand Government on 30 days written notice by the Contractor to the Company.

5.2 Invoices and payment

  1. The Contractor will submit a valid Tax Invoice in respect of any Price payable by the Company in connection with this Agreement. The Company will pay such Tax Invoice in accordance with the payment terms set out in the Tax Invoice. 
  2. All amounts due to the Contractor under this Agreement shall be paid by the Company to the Contractor's designated bank account and on the terms set out in the relevant Tax Invoice.
  3. The Price is exclusive of any taxes, duties and levies, whether imposed by New Zealand or by any other jurisdiction and whether or not the Company is required to deduct or withhold such taxes, duties or levies.
  4. All Tax Invoices will be sent to the nominated representative listed in Item 5 of the Contract Particulars or other address nominated by the parties from time to time.

5.3 Disputed invoices

In the event that a dispute arises as to any claim for payment made by the Contractor the following shall apply:

  1. the undisputed amount shall be paid in accordance with this Agreement;
  2. the Company shall promptly detail in writing to the Contractor (and in any event no later than five Business Days after receiving the relevant Tax Invoice) the specific grounds upon which it disputes the disputed amount (“Price Dispute Notice”).  If a Price Dispute Notice is not issued within five Business Days the Company is deemed to accept the amounts are due and is barred from disputing any part of the relevant Tax Invoice;
  3. the Chief Executive Officer of each party (or other nominated party with full authority to settle the dispute) shall meet within five Business Days of receipt of the Price Dispute Notice and endeavour to resolve the dispute; and
  4. if the dispute cannot be resolved within five Business Days of the meeting, either party may initiate legal action.

5.4 Set off

The Company may set off any amount it owes the Contractor under this Agreement against any amount that the Contractor owes it under this Agreement.

5.5 Interest and default

  1. Overdue payments will incur interest calculated daily at 3% above the 30 day bank bill rate specified by the Reserve Bank of New Zealand at the time the payment is overdue. 
  2. The Contractor has the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to it.  
  3. The Company acknowledges and agrees that it is liable for and will pay all costs including debt collection, commission, solicitor’s fees and any out of pocket expense and that the Contractor may place a default against the Company with a credit reporting agency. 

5.6 GST

  1. Where a supply under this Agreement is a taxable supply under the laws of New Zealand, all amounts payable or other consideration provided must be increased by the amount of GST payable in relation to the supply. Any costs or other amounts to be reimbursed or indemnified under this Agreement exclude any amount of GST for which an input tax credit under can be claimed.
  2. All GST payable must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued for the supply). Where any GST payable is not referable to an actual payment, then it must be paid within 10 Business Days of a tax invoice being issued by the party making the supply.

6. Warranties

6.1 General warranties

Each party represents and warrants:

  1. it has full corporate power to enter into and give effect to this Agreement and the transactions contemplated by this Agreement;
  2. it has taken all necessary action to authorise the execution, delivery and performance of this Agreement;
  3. the execution, delivery and performance of this Agreement does not contravene any contractual, legal or other obligations that apply to it; and
  4. the obligations under this Agreement will be valid, binding and enforceable.

7. Liability and Indemnity

7.1 Liability

Neither party excludes or limits liability to the other party for:

  1. fraud or fraudulent misrepresentation;
  2. death or personal injury caused by negligence; or
  3. any matter for which it would be unlawful for the parties to exclude liability.

7.2 Limitation of Liability 

  1. Neither party shall be liable for any indirect economic or consequential loss or damage which may be suffered by the other party in the course of or in connection with this Agreement or the performance or intended performance of it including, but not limited to, loss of use, loss of profits, loss of income, loss of product or business interruption, howsoever caused, including by the sole, joint and/or concurrent negligence of any party.  This clause does not apply in the case of intentional or malicious breach of this Agreement or other action.
  2. A party is not liable for any breach due to a Force Majeure Event and where it has used its best endeavours to perform its obligations under the Agreement despite the Force Majeure Event.  

7.3 Indemnity

The Company shall indemnify the Contractor, its directors, employees, officers, and agents from any loss and liability suffered or incurred by the Contractor in connection with or as a result of providing the Services to the Company. This indemnity is limited to an amount equal to the total value of services provided under this agreement.

8. Confidentiality and Intellectual Property

8.1 Confidentiality

  1. Each party shall keep confidential and secure, and not misuse, any information about the other party provided to it or obtained by it in connection with this Agreement which would reasonably be expected to be proprietary or commercially sensitive or confidential or is otherwise notified as such by the other party ("Confidential Information”).  
  2. A party may disclose to any third party, or use, any Confidential Information only to the extent required by law or necessary to perform its obligations under this Agreement.  
  3. The Contractor shall not make any public statements or press releases about, or relating to, any Services performed under this Agreement without the Company’s prior written consent.

8.2 Intellectual Property 

  1. All Intellectual Property (together with all modifications, adaptations or developments to such intellectual property by a party, or that party's agents) which is owned by, or is proprietary to, a party prior to the Commencement Date (“Existing Intellectual Property”) shall remain owned exclusively by that party unless otherwise agreed in writing by the parties.
  2. Notwithstanding clause 8.2a), each party grants to the other party, or agrees to procure the grant of, an unrestricted royalty-free licence to use and copy their Existing Intellectual Property to the extent reasonably required to enable the other party to provide or make use of the Services (as applicable).
  3. Any intellectual property created during, and arising from, performance of any Services under this Agreement (“New Intellectual Property”) shall be owned by the party who created the New Intellectual Property.

9. Provision of Information

The Company shall provide the Contractor with all information within its power or control and reasonably necessary for the Contractor to properly provide the Services in accordance with the Agreement.  The Company shall promptly respond to any request by the Contractor for information.  

10. Termination

10.1 Mutual rights to terminate the Agreement

Either party may terminate this Agreement on 30 days notice in writing sent to the other party in the following circumstances:

  1. a Statement of Work has not being issued for 12 months;
  2. a Force Majeure Event continues for more than 15 consecutive Business Days, or for an aggregate of 30 Business Days in any six-month period;
  3. either party commits a material breach of any term of this Agreement and, if such breach is remediable, fails to remedy that breach within a period of 20 Business Days after being notified in writing to do so;
  4. either party is the subject of an Insolvency Event; 
  5. either party is found to be guilty of fraud, dishonesty or any other serious misconduct; or
  6. any warranty given in clause 6 is found to be untrue or misleading.

10.2 Termination of a Statement of Work

Without in any way limiting the rights of the parties to terminate this Agreement, either party may terminate a Statement of Work by written notice to the other party if any of the following occurs:

  1. either party is in breach of its obligations under the applicable Statement of Work and does not remedy the breach (to the extent that it can be remedied) for 20 Business Days after receiving a written notice from the other party specifying the breach and requiring it to be remedied;
  2. a Force Majeure Event continues for more than 15 consecutive Business Days, or for an aggregate of 30 Business Days in any six-month period;
  3. either party is in breach of an essential term of the applicable Statement of Work;
  4. either party commits multiple or recurring breaches of the applicable Statement of Work whether or not remedied.

If a Statement of Work is terminated under this clause, this Agreement continues in respect of all other Statements of Work (if any) and generally in accordance with its terms.

10.3 Consequences of Termination

  1. On the expiry or termination of this Agreement for any reason:some text
    1. each party retains its accrued rights and any rights in respect of any breach by the other party;
    2. subject to set off rights, the Company must make payment to Contractor for Services performed before the date of termination;; and
    3. Company is not liable to pay for any work (including any Services) provided after the date of termination.
  2. On the expiration or termination of this Agreement for any reason, each Party must immediately return all of the other’s equipment, information, documents and property used in provision of the Services or otherwise in the Company’s or Contractor’s possession or control.
  3. Any clauses that by their nature are intended to survive the termination or expiration of this Agreement shall remain in force after the termination or expiration of this Agreement.

11. Dispute resolution

11.1 Panel Resolution

In the event of a dispute between the parties, the parties agree in good faith to use all reasonable endeavours to settle the dispute. If the parties are unable to settle the dispute in good faith then the following provisions will apply:

  1. either party may refer the dispute to a panel which will consist of a nominee of the Contractor and of a nominee of the Company (Panel). The two nominees will confer within 10 Business Days of either party referring a matter to the Panel in an endeavour to settle the dispute in good faith; and 
  2. if the Panel fails to agree within 10 Business Days after first conferring, then the dispute will be referred to mediation.

11.2 Mediation 

The dispute will be referred to mediation as follows:

  1. the mediator will be a mediator agreed upon by the Panel and, failing agreement within 10 Business Days of request to do so, as will be nominated by the President of the Resolution Institute;
  2. the parties will be jointly responsible for the fees of the mediation and each party must pay its own costs in respect of it;
  3. the parties may be legally represented; and
  4. the place of mediation will be in Auckland, New Zealand (facilitated by online mens if necessary).

11.3 Injunction

Notwithstanding the above, a party is not prevented from making an application to a court for an interlocutory injunction.

12. General

12. 1 Notices

  1. Any notice, demand, consent, approval, request or other communication (Notice) to be given under this Agreement must be in writing and must be given to the recipient at its address as listed on item 1 of the Contract Particulars (or as updated by the recipient and notified to the sender from time to time) by being: some text
    1. hand delivered; 
    2. sent by email;
    3. sent by prepaid ordinary mail within New Zealand; or 
    4. sent by prepaid Express Post International airmail, if the addresses for the sender and the recipient are in different countries. 
  2. A Notice is given if: some text
    1. hand delivered, on the date of delivery; 
    2. sent by email, when the email leaves the sender’s mail server and no notification is received regarding delivery failure;;
    3. sent by prepaid ordinary mail within New Zealand, on the date that is five Business Days after the date of posting; or 
    4. sent by prepaid Express Post International airmail between countries, on the date that is ten Business Days after the date of posting. 

12.2 Relationship

Nothing contained or implied in this Agreement constitutes a party the partner, agent or legal representative of the other party for any purpose, or creates any partnership, employment, agency or trust. Neither party has the authority to bind the other party in any way.

12.3 Counterparts

  1. This Agreement may be executed in any number of counterparts, in which case each counterpart is an original but the counterparts together are one and the same Agreement.
  2. This Agreement may be executed and exchanged by the parties in electronic form.

12.4 Force majeure

  1. If a party is prevented from or delayed in performing an obligation under this Agreement (other than an obligation to pay money) by a Force Majeure Event, then the obligation is suspended during, but for no longer than, the period the Force Majeure Event continues and such further period as is reasonable in the circumstances.  
  2. The party that is prevented from or delayed in performing the obligation must promptly notify the other party of its inability to perform the obligation due to the Force Majeure Event.

12.5 Severability

Any provision of this Agreement which is illegal, void or unenforceable is only ineffective to the extent that it is illegal, void or unenforceable, and does not invalidate the remaining provisions. 

12.6 Assignment

The Company may not assign its rights or obligations under this Agreement without the prior written consent of the Contractor.

12.7 Waiver

  1. A party’s failure to exercise a power or right does not operate as a waiver of that power or right.
  2. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
  3. A waiver is not effective unless it is in writing.
  4. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

12.8 Variation

An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.

12.10 Governing law

This Agreement will be governed by the laws of New Zealand, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand. 

12.11 Costs

Each party is responsible for its own legal and other costs incurred in relation to the preparation of this Agreement.

12.12 Entire agreement

This Agreement constitutes the entire agreement between the parties in respect of the Services, and supersedes all prior agreements, representations, negotiations and correspondence.