Terms and Conditions
PARTIES:
1. Youthline te ara talohi whakatapua kia ora ai (“the Customer”)
2. ReddInsight Limited (“the Consultant”)
BACKGROUND:
A. The Customer has agreed to engage the Consultant to carry out the services referred to in the schedule to this agreement (“the services”).
B. The parties agree and acknowledge that their relationship is one of independent contractor and principal.
C. The terms and conditions on which the Consultant will carry out the services are set out below.
THE PARTIES AGREE AS FOLLOWS:
Definitions
“Confidential Information” shall mean all information relating to the existence of this agreement and all information in whatever form including oral, written and electronic information that:
1.1.1 The Customer makes available to the Consultant in order for the Consultant to carry out the Services; or
1.1.2 The Consultant obtains or generates and which refers to, or is based upon Confidential Information supplied to the recipient in order for the Consultant to carry out the Services;
concerning the Customer, structure, methods, acquisitions, material contracts, systems, intellectual property or finances of the Customer, its customers and suppliers, its administration and operation but does not include information generally available to and known by the public through no fault of the Consultant.
1.2 “Manager” is the person identified by the Customer and notified to the Consultant as the direct report for the Consultant.
1.3 “Working Day“ means any day of the week other than Saturday, Sunday or a public holiday in the location where the Customer’s main premises are situated.
Consultant to Perform Services
1.1 The Consultant agrees to perform the services in a timely, careful, efficient and competent manner in accordance with the terms of this agreement.
1.2 The services may from time to time be varied by agreement in writing.
2. Consultant’s Obligations
2.1 The Consultant will:
2.1.1 Promptly commence and carry out the services as efficiently as possible;
2.1.2 Exercise due care and skill in the handling of information, records or property belonging to the Customer or to any customer of the Customer;
2.1.3 Supply the equipment, materials and other resources which are necessary to ensure the services are performed efficiently as specified in the Schedule;
2.1.4 Not disclose to any person any Confidential Information other than is directly required in order to carry out the Services;
2.1.5 Comply with such directions as the Manager may give to the Consultant in respect of the performance of the services;
2.1.6 Work co-operatively with the Manager and other members of Customer;
2.1.7 Comply with the Health and Safety in Employment Act 1992 and any health and safety procedures and policies of the Customer;
2.1.8 Comply with all normal operating procedures and policies of the Customer, in so far as they relate to carrying out the Services and as are notified to the Consultant from time to time;
2.1.9 Not do anything to prejudice the good name of the Customer in the Consultant’s dealings with third parties.
2.2 In undertaking the services and functions in the Schedule the Contractor shall perform its obligations under the Agreement in a fully transparent manner and shall disclose to the Manager any matter which may be, or result in a potential conflict of interest.
2.3 Any other work performed by the Consultant shall in any case not interfere with the Services the Consultant is required to provide to the Customer under this Agreement. The Consultant will keep the Customer informed of any similar work and both parties will work to resolve any conflicts that might arise from such work.
2.4 For the avoidance of doubt the parties acknowledge and accept the Consultant is in Customer on the Consultant’s own account and is entitled to undertake any other work for any other person or entity in the same or similar field as provided to the Customer, provided that the Consultant is able to comply with the Consultant’s obligations in Clause 3.
3. Customer Obligations
3.1 In addition to the Customer’s payment obligations, the Customer will:
3.1.1 Provide promptly all relevant information, directions, assistance and co-operation as and when reasonably required.
3.1.2 Provide the Contractor with reasonable access to the Customer’s premises, facilities, IT systems (must include remote access), and support services, including for auditing compliance with this Agreement.
3.1.3 Comply with any Customer obligations specified in the Schedule.
4. Deliverables
4.1 The consultant will produce the deliverables set out in the Schedule
5. Term
5.1 The term of this agreement shall be as set out in the schedule or until terminated as provided in clause 12.
6. Charges
6.1 The Consultant’s charges for the services shall be as set out in the schedule.
6.2 The Consultant will render an itemised GST tax invoice monthly for all charges.
6.3 The Customer will pay all charges invoiced within 15 Working Days of receipt of the tax invoice.
6.4 If the Customer disputes any item or items referred to in the monthly invoice, it will, within 10 Working Days of receipt of such invoice, notify the Consultant of the reasons for disputing the item(s). Payment of any undisputed portion of an invoice shall not be delayed on account of such dispute.
7. Status of Consultant
7.1 The Consultant is an independent contractor and will be responsible for the Consultant’s own liability for all tax, accident compensation premiums and other levies.
7.2 The Consultant agrees to indemnify the Customer against any tax, penalty tax payments, or levies assessed against the Customer due to the Consultant’s non-compliance with this clause.
7.3 Nothing in this agreement shall be construed as creating any relationship of employment, partnership, joint venture, agency or any other relationship between the parties except that of independent contractor.
8. General Conditions
8.1 No waiver of any breach of this agreement shall be treated as a waiver of any other or any subsequent breach. The failure of either party to enforce any provision of this agreement at any time shall not be interpreted as a waiver of that provision.
8.2 This agreement constitutes the entire agreement between the parties and will supersede all previous negotiations, commitments and representations. Any variation to this agreement shall be in writing and signed by both parties.
8.3 This agreement shall be governed by and construed in accordance with New Zealand law and the Consultant irrevocably and unconditionally submits to the jurisdiction of the Courts of New Zealand in relation to any disputes or proceedings arising out of or in connection with this undertaking.
8.4 Neither party will be liable to the other for any failure to perform its obligations under this Agreement during the time and to the extent that such performance is prevented, wholly or substantially, by reason of any Force Majeure Event.
9. Termination
9.1 The Customer or the Consultant may give 4 weeks notice in writing of termination of this agreement.
9.2 The Consultant may terminate this agreement without prior notice in writing to the Customer if:
9.2.1 The Customer is in arrears for more than 20 Working Days after any payment by the Customer to the Consultant has become due, unless the Customer has given notice under clause 9.4 that it disputes the payment; or
9.2.2 The Customer has breached any of the terms of this agreement and has failed to remedy the breach within 5 Working Days of notice in writing from the Consultant requiring the breach to be remedied.
9.3 The Customer may terminate this agreement without prior notice in writing to the Consultant if;
9.3.1 The Consultant has breached any of the terms of this agreement and fails to remedy the breach within 5 Working Days of notice in writing from the Customer requiring the breach to be remedied;
9.3.2 The Consultant becomes insolvent or enters into a composition with the Consultant’s creditors
9.3.3 The Customer reasonably believes that the Consultant, by reason of sickness or injury, will be unable to carry out further Services under this contract in a timely and efficient manner.
9.4 The termination of this agreement by either party shall be without prejudice to the rights and obligations of the parties immediately before termination.
9.5 On termination, the Consultant will immediately return to the Customer any records, equipment or other property of the Customer in the Consultant’s possession.
10. Disputes
10.1 The parties shall meet and discuss in good faith any dispute between them arising out of this agreement.
10.2 If the discussions referred to in clause 9.1 fail to resolve the relevant dispute within a period of 10 Customer Days, either party may (by written notice to the other party) require that the dispute be submitted for mediation by a single mediator nominated by the President for the time being of the Arbitrators and Mediators Institute of New Zealand Inc. (or his or her nominee). In the event of any such submission to mediation:
10.2.1 The mediator shall be deemed to be not acting as an expert or as an arbitrator.
10.2.2 The mediator shall determine the procedure and timetable for the mediation.
10.2.3 The cost of the mediation shall be shared equally between the parties.
10.2.4 Neither party may require any arbitration, or issue any legal proceedings (other than for urgent interlocutory relief), in respect of any such dispute, unless that party has first taken all reasonable steps to comply with clauses 9.1 and 9.2.
11. Limitation of Liability
11.1 Except as expressly provided in this Agreement, all representations or warranties (statutory, express or implied), are, to the maximum extent permitted by law, expressly excluded, including without limitation, the implied warranties of merchantability and fitness for a particular purpose.
11.2 Notwithstanding any other provision in this Agreement, the Consultant will not be liable to the Customer (under the law of contract, tort, equity or otherwise) for any damages of any kind arising out of or in connection with this Agreement that is indirect or consequential or for any loss of revenue, sales, profits, business or any other economic loss or any loss of goodwill, regardless of the cause of such damages.
11.3 Notwithstanding any other provision in this Agreement, the Consultant’s aggregate liability to the Customer for loss or damages (under the law of contract, tort, equity or otherwise) arising out of or in connection with this Agreement shall not exceed the total amount received by the Consultant from the Customer for the Services and Deliverables the subject of the claim in any 6 months under this Agreement.
No action arising out of this Agreement, regardless of the form, may be brought by either party more than 6 months after the cause of action arose.
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