Funding Agreement General Terms November 2018
1.1 In this Agreement, the following terms have the following meanings unless the context requires otherwise:
Activities means the Activities specified in the Special Terms;
Agreed Percentage means the Agreed Percentage specified in the Special Terms;
Agreement means this Agreement, including these General Terms, the Special Terms and any appendices to this Agreement;
Business Case means the International Growth Fund Business Case that is prepared by the Customer and NZTE and approved in writing by NZTE;
Claim means a claim submitted by the Recipient for Funding under this Agreement in accordance with clause 2 of these General Terms;
Close Out Report means the Close Out Report described in the Special Terms;
Coalition means a group of entities, or an entity owned by a group of entities, where the group of entities is collaborating to facilitate the growth of New Zealand exports of particular products or services;
Coalition Participant means, where the relevant Coalition is:
(a) a group of entities, each entity in that group; and
(b) an entity owned by a group of entities, each entity in that group;
Commencement Date means the Commencement Date specified in the Special Terms;
Default Event means an event specified in clause 4.2 of these General Terms;
Eligible Costs means the actual, approved and paid costs incurred by the Recipient in achieving each Activity, as may be specified in the Special Terms or an appendix to this Agreement;
Expiry Date means the Expiry Date specified in the Special Terms;
Funding means the funding or any part of the funding (as the context requires) payable by NZTE to the Recipient in accordance with the terms of this Agreement, as described in the Special Terms;
General Terms means these Funding Agreement - General Terms;
GST means goods and services tax payable under the Goods and Services Tax Act 1985;
Interim Report means any Interim Report specified in the Special Terms;
Maximum Amount Payable means the maximum amount of Funding payable by NZTE to the Recipient pursuant to this Agreement, as specified in the Special Terms;
New Zealand Ownership or Control Interest means the percentage ownership or control interest in the Recipient held by persons that are not “overseas persons” as that term is defined in the Overseas Investment Act 2005;
NZTE means New Zealand Trade and Enterprise;
Project means the project specified in the Special Terms and the Business Case;
Recipient means the Recipient specified in the Special Terms; and
Special Terms means the Funding Agreement - Special Terms executed by NZTE and the Recipient.
1.2 In this Agreement:
(a) except in the Special Terms or as otherwise expressly stated, headings are for convenience only and have no legal effect;
(b) references to the singular include the plural and vice versa;
(c) references to a party include that party’s successors, executors, administrators and permitted assignees (as the case may be);
(d) references to a person include an individual, firm, company, corporation or unincorporated body of persons, any public, territorial or regional authority, any government, and any agency of any government or of any such authority;
(e) wherever the words “includes” or “including” (or similar words) are used, they are deemed to be followed by the words “without limitation”;
(f) if there is any conflict between the terms of this Agreement, the following order of precedence will apply unless otherwise specified:
(i) these General Terms;
(ii) the Special Terms; and
(iii) any appendices to this Agreement.
2. Claims and payment of funding
2.1 Subject to the terms of this Agreement, NZTE will pay the Funding up to the Maximum Amount Payable.
2.2 NZTE will pay the Funding:
(a) on submission of a valid Claim by the Recipient;
(b) following the undertaking of the Activity or Activities to NZTE’s satisfaction;
(c) in reimbursement of the Agreed Percentage of the Eligible Costs for the relevant Activity or Activities.
2.3 Each Claim must be in the form provided by NZTE and contain:
(a) details of the relevant Activity undertaken;
(b) any evidence of the undertaking of the relevant Activity required under the Special Terms;
(c) an invoice which includes a breakdown of total costs incurred and paid by the Recipient to date in relation to the relevant Activity;
(d) any other information reasonably required by NZTE (which may include certification from an external accountant independent of the Recipient or any other certification specified in the Special Terms).
2.4 NZTE will make payment of Funding in respect of any Claim only if:
(a) NZTE is satisfied the costs incurred in carrying out the Project are an appropriate use of public funds;
(b) NZTE is satisfied that the Recipient has undertaken the relevant Activity and any previous Activities;
(c) the Claim will not result in the Funding exceeding the Maximum Amount Payable;
(d) the costs claimed are not Ineligible Costs (as specified in the Special Terms);
(e) a Default Event has not occurred;
(f) the Claim is submitted before the Claims Deadline specified in the Special Terms;
(g) this Agreement has not been terminated; and
(h) the Recipient has otherwise complied with its obligations under this Agreement.
2.5 Unless otherwise agreed and detailed in the Special Terms, the Recipient will bear the risk of currency fluctuations. Costs incurred in foreign (i.e. not $NZ) currencies will be converted to New Zealand currency as at the date the Recipient paid the invoice within the relevant Claim. Reimbursement amounts will be calculated in New Zealand dollars. NZTE may on request by the Recipient (but is not obliged to) make payment of Funding in a foreign currency. If NZTE agrees to make any payment of Funding in a foreign currency, any necessary conversion to that currency from New Zealand dollars will be calculated as at the date of payment of the relevant Claim.
2.6 All payments of the Funding will include a GST component, calculated from the GST exclusive amounts of all Eligible Costs.
3. Recipient's responsibilities
3.1 The Recipient will:
(a) achieve, to NZTE’s reasonable satisfaction, each Activity by any relevant delivery date for each Activity in accordance with the Special Terms;
(b) provide NZTE with the Close Out Report, Interim Reports and any other reports as reasonably requested by NZTE;
(c) ensure all Claims are for reimbursement of Eligible Costs incurred in relation to the Project and in accordance with this Agreement;
(d) carry out the Project in accordance with the Business Case, including any variations agreed between NZTE and the Recipient;
(e) not at any time do anything that has the effect or likely effect of adversely affecting the reputation, good standing or goodwill of NZTE or New Zealand business;
(f) immediately inform NZTE, and keep NZTE informed, of any Default Event or potential Default Event known to the Recipient, and/or of any action of, or matter involving, the Recipient or the Project that is known to the Recipient and will, or is reasonably likely to:
(i) adversely affect the Recipient’s ability to carry out the Project; or
(ii) result in a breach of any term of this Agreement by the Recipient;
(g) receive and manage all Funding in accordance with good accounting practices and to a high standard that demonstrates appropriate use of public funds;
(h) carry out the Project and perform its obligations under this Agreement:
(i) in a competent and professional manner;
(ii) in accordance with best industry practice; and
(iii) in compliance with all applicable laws, including New Zealand’s international obligations;
(i) procure that any contractor to the Recipient in relation to the Project acts in accordance with the terms of this Agreement;
(j) if the Recipient is a Coalition, inform NZTE of any proposed changes to the identity or number of Coalition Participants in the Coalition at least seven days before the changes take effect (or as soon as reasonably practicable if the Recipient becomes aware of the proposed changes less than seven days before they occur); and
(k) comply in all respects with the terms of this Agreement.
3.2 Unless otherwise approved in writing by NZTE, any third party engaged by the Recipient to provide goods or services in relation to the Project must be independent of the Recipient and not financially or personally associated with the Recipient in any way.
3.3 If the Recipient informs NZTE under clause 3.1(j) that there is a proposed change to the identity or number of Coalition Participants in the Coalition and asks NZTE to advise whether NZTE considers that the proposed change will materially affect the nature of the Coalition (which could cause a Default Event under clause 4.2(k)), NZTE must provide:
(a) its view on that issue to the Recipient; and
(b) if NZTE believes the Recipient needs a consent to the proposed change, NZTE’s decision on whether it consents,
as soon as reasonably practicable.
4. Term and termination
4.1 This Agreement commences on the Commencement Date and, unless terminated earlier in accordance with this clause 4, continues until the Expiry Date.
4.2 A Default Event occurs if:
(a) the Recipient does not comply with a material obligation (including any obligation under clause 3.1 of these General Terms), or a condition or warranty, under this Agreement;
(b) the Recipient has provided NZTE with information in connection with or under this Agreement (including in the Business Case and any Claim) that (whether intentionally or not) is incorrect, is misleading, or omits material information;
(c) for any reason, the Project or any significant aspect of the Project does not proceed or is significantly delayed;
(d) an event occurs which, in NZTE’s reasonable judgement, means the Recipient and/or the Project no longer meet the criteria under which the Recipient and Project were assessed and approved for Funding by NZTE, or means there has been a reduction in the Project’s direct economic impact to New Zealand;
(e) an event occurs which, in NZTE’s reasonable judgement, means provision of Funding to the Recipient would no longer be an appropriate use of public funds (e.g. a decrease in the New Zealand Ownership or Control Interest in the Recipient);
(f) an event occurs which, in NZTE’s reasonable judgment, could result in the Recipient not being able to perform a material obligation, or satisfy a condition or warranty, under this Agreement;
(g) NZTE reasonably considers that this Agreement, the Project or any associated matter has caused, or may cause, NZTE and/or New Zealand to breach any legal obligations (including its international trade obligations);
(h) the Recipient is involved in any intentional or reckless conduct which, in the reasonable opinion of NZTE, has damaged or could damage the reputation, good standing or goodwill of NZTE, its name, or New Zealand industry generally, or is involved in any material misrepresentation or any fraud;
(i) there appears to NZTE to have been a deterioration in the Recipient’s financial position that impacts or may impact on the Recipient’s ability to successfully deliver the Project or comply with the terms of this Agreement;
(j) the Recipient becomes or is likely to become, in NZTE’s reasonable opinion, insolvent or bankrupt; has a liquidator, receiver, manager or similar person appointed in respect of any of the Recipient’s assets; or ceases to carry on its operations or business (or a material part of them) in New Zealand;
(k) where the Recipient is a Coalition, there is a change in the identity or number of Coalition Participants in the Coalition that, in NZTE’s reasonable opinion, materially affects the nature of the Coalition, unless it is a change for which NZTE has provided its written consent.
4.3 If there has been a Default Event and NZTE considers (acting reasonably) that the Default Event is capable of remedy, NZTE may by notice to the Recipient require the Recipient to remedy the Default Event to NZTE’s satisfaction within 28 days of such notice (or such other period as may be agreed in writing between the parties).
4.4 If a Default Event occurs, NZTE may do any of the following:
(a) withhold all or some of the Funding;
(b) by notice to the Recipient require the repayment of any Funding paid to the Recipient after the Default Event;
(c) terminate this Agreement on notice to the Recipient.
4.5 In addition to clause 4.4, if any of the following occurs (which NZTE considers each a Default Event):
i) there has been any fraud, misleading or deceptive conduct by the Recipient;
ii) the Recipient enters into an arrangement
(a) during the term of the agreement; or
(b) up to 2 years from the Expiry Date or date of termination of the Funding Agreement; and
(c) in the reasonable opinion of NZTE, the arrangement materially reduces the economic benefit to New Zealand anticipated from the Project;
iii) the Recipient breaches clause 3.1(b),
NZTE may, by notice to the Recipient require the Recipient to repay all Funding paid.
4.6 Without limiting NZTE’s other rights or remedies, NZTE may terminate this Agreement immediately on notice to the Recipient if:
(a) there has been a Default Event;
(b) NZTE reasonably considers that this Agreement, the Project or any associated matter has caused, or may cause, NZTE to breach any legal obligations (including international obligations);
(c) a conflict of interest arises in relation to this Agreement,
the Project or any associated matter which NZTE reasonably considers is unable to be appropriately managed other than by terminating this Agreement; or
(d) NZTE cannot provide the Funding due to a change in government policy, withdrawal of government funding or lack of parliamentary appropriation, or any other event beyond NZTE’s reasonable control.
4.7 Either party may terminate this Agreement on 6 months’ written notice to the other.
4.8 Clauses 4.4, 4.5, 5, 6, 7, 8, 9, 10 and 11 survive expiry or termination of this Agreement.
4.9 Expiry or termination of this Agreement does not affect any accrued rights (including rights in respect of any breach of this Agreement or Default Event occurring before expiry or termination).
5. Records and audit
5.1 The Recipient must, during the term of this Agreement and for a period of at least 7 years after the date the last payment of Funding was made:
(a) keep full and accurate records (including accounting records, which for the avoidance of doubt includes invoices received from providers) of the Project (the Information);
(b) as soon as possible after NZTE (or a person authorised by NZTE) makes a request for the Information, give NZTE or that authorised person:
(i) the Information (or any of it requested) and any other information reasonably requested for the purposes of auditing the application of the Funding; and/or
(ii) access at any reasonable time to its premises and/or records (including electronic records) to obtain the Information (or any of it requested);
(c) ensure that any contractor commissioned by the Recipient promptly provides, on request by NZTE, any information requested in relation to the Project.
5.2 The parties acknowledge that NZTE is required to comply with the Public Records Act 2005 (the PR Act), including any mandatory standards issued there under, and that records the Recipient creates and/or holds in relation to this Agreement may be “public records” for the purposes of the PR Act.
Accordingly, the Recipient agrees, in addition to its obligations under clause 5.1 above, to proactively and fully cooperate with and assist NZTE in good faith and in a timely manner, as reasonably requested by NZTE from time to time, to ensure compliance by NZTE with the PR Act (including providing any assistance reasonably required in respect of any audit of NZTE pursuant to the PR Act).
6.1 The Recipient warrants to NZTE that:
(a) it is registered in New Zealand for tax purposes;
(b) it is duly authorised to enter into and perform its obligations under this Agreement;
(c) all information, statements and representations disclosed or made to NZTE by the Recipient in connection with itself and the Project are true and correct, do not omit any material matter, and are not likely to mislead or deceive NZTE as to any material matter. The Recipient acknowledges that NZTE has entered into this Agreement in reliance on the veracity of the information, statements and representations described above;
(d) neither this Agreement nor the Project infringe or will infringe any rights of third parties (including valid third party intellectual property rights);
it does not have any conflicts of interest in relation to this Agreement, and does not know of any conflict of interest that may arise for NZTE as a result of this Agreement or the Project, other than those conflicts (if any) that have been previously disclosed by the Recipient to NZTE. Where a conflict of interest has arisen or is likely to arise in future, the Recipient must inform NZTE immediately in writing of the conflict of interest and must follow NZTE’s directions in relation to the management of the conflict;
(e) funding has not been sought nor will be sought from any other government source for the same costs. This does not preclude more than one government agency contributing to the same overall project.
7. Indemnity and insurance
7.1 The Recipient indemnifies and holds harmless NZTE from and against all costs, claims, damages, losses, liabilities and expenses (including legal expenses on a solicitor client basis) relating to this Agreement or the Project that arise directly or indirectly from the negligent or wilful act or omission of, or breach of this Agreement by, the Recipient or the Recipient’s employees, agents, contractors, subcontractors and/or advisors.
7.2 The Recipient shall take out and maintain public liability insurance cover as is usual for entities undertaking operations in the nature of those undertaken by the Recipient in respect of the Project.
7.3 Within 10 Business Days of a request from NZTE the Recipient must provide a copy of the insurance policy and a certificate proving that it is current.
8.1 Subject to clause 8.2, neither party will make use of or disclose to any third party any information of a confidential nature concerning the other party, except:
(a) with the prior consent of the other party, such consent not to be unreasonably withheld;
(b) to the extent necessary to perform its obligations under this Agreement or obtain professional advice in respect of this Agreement, and then only after advising the third party of the confidential nature of the information and ensuring the third party’s compliance with this clause 8; or
(c) as required by law.
8.2 The Recipient acknowledges that NZTE is subject to the Official Information Act 1982, and that information NZTE holds relating to the Recipient, its reports, or this Agreement (or part thereof) may be required to be used or disclosed as required by law, Ministers or parliamentary questions.
9. Dispute resolution
9.1 In the event of a dispute between the parties arising out of or in connection with this Agreement (a Dispute), the party claiming the Dispute has arisen must, as soon as practicable, give written notice to the other party specifying the nature of the dispute. The parties will then endeavour, in good faith, to resolve the Dispute by agreement.
9.2 Any party may require any Dispute which has not been resolved in accordance with clause 9.1 above within 14 days of notification of the Dispute to be referred to mediation. The mediator will be appointed by the parties or, where the parties cannot agree on a mediator within 14 days of a party referring a Dispute to mediation, appointed by the Chairperson of LEADR New Zealand Incorporated or the Chairperson’s nominee. The mediator will conduct the mediation in accordance with guidelines that are agreed between the parties or, if the parties cannot agree on those guidelines within 14 days following appointment of the mediator, in accordance with the guidelines set by the mediator. The costs and expenses of the mediator will be shared by the parties equally.
9.3 The provisions of clause 9.2 will not limit or affect the right of NZTE or the Recipient to apply to a court at any time for any interim or preliminary relief in respect of the Dispute.
10.1 The Recipient will establish internal policies and procedures to ensure its directors, trustees, managers and employees act at all times consistently with best management practices and best practices of corporate governance, including practices as to:
(a) completion and retention of records and accounts;
(b) identifying, disclosing and managing possible conflicts of interest;
(c) honestly, properly and ethically using the Recipient’s information, assets and property; and
(d) complying with all applicable laws and regulations.
11. Names, marks and publicity
11.1 Other than as specified in this Agreement, the Recipient does not have the right to use NZTE’s name in any manner, or to enter into any commitment, contract or agreement on behalf of NZTE or any associated body, or to make any public statement or comment on behalf of NZTE. The Recipient does not by this Agreement obtain any right, title or interest in or to the trade marks of NZTE, which trade marks shall only be used in the manner specified by NZTE.
11.2 The Recipient agrees that, subject to the Recipient’s prior written approval, NZTE may use the Recipient’s name, its trade marks (if any) or the names of its products or services in relation to this Agreement and to NZTE, its role and New Zealand business in general. The Recipient shall not be entitled to charge any fee in relation to the use of the Recipient’s name, its trade marks or the name of any of its products or services by NZTE.
11.3 The Recipient must not make any media statements or press releases regarding this Agreement, the Project and/or the role of NZTE in the Project without NZTE’s prior written approval.
11.4 The Recipient may, where approved by NZTE (and subject to the terms of that approval), publicly acknowledge the Funding provided by NZTE. However, the Recipient must not lead any person to believe that Funding received under this Agreement amounts to an endorsement by NZTE of the Recipient, the Project, or any products or services of the Recipient. If requested by NZTE, the Recipient will cooperate with NZTE in relation to the Project to promote NZTE and New Zealand business in general without further payment to the Recipient or any other party.
12.1 No variation or amendment to this Agreement, the Project, or the Business Case will be effective unless it is in writing and signed by both parties.
12.2 Both parties acknowledge that, for various reasons, agreed Activities or other aspects of the Project may become delayed, changed or unnecessary. Where such circumstances arise or are likely to arise, the Recipient must notify NZTE as soon as possible, and may request amendments to the Activity (or Activities), Business Case or any terms of this Agreement. Clause 12.1 will apply to any such request.
13.1 This Agreement is personal to the Recipient and cannot be assigned, novated or otherwise transferred to any third party by the Recipient, without NZTE’s prior written approval.
13.2 Any change in the effective ownership, management or control of the Recipient or any parent company of the Recipient, through whatever means, will be deemed to be an assignment of this Agreement requiring the prior written approval of NZTE.
13.3 Any change in the business, assets and/or liabilities of the Recipient, through whatever means, that exceeds 5% of the business, assets and/or liabilities (as applicable) of the Recipient that are referred to in the Business Case, or are in connection with the Business Case, will be deemed to be an assignment of this Agreement requiring the prior written approval of NZTE.
13.4 Any attempts by the Recipient to assign the rights, duties or obligations contained in this Agreement without NZTE’s written approval shall be of no effect. If assigned, this Agreement will be binding on and remain in effect for the benefit of the parties and their respective successors.
14.1 This Agreement is the entire agreement between the parties, and supersedes all previous agreements and communications, whether verbal or written, between the parties, in respect of the matters set out in this Agreement.
14.2 This Agreement shall not be deemed to constitute either party as the partner, agent or legal representative of the other. Neither party shall have any authority to act or assume any obligation or liability on behalf of the other.
14.3 No waiver will be effective unless in writing and signed by the relevant party. Neither waiver by NZTE, nor failure of NZTE to insist in any one or more instances upon the strict performance of any term of this Agreement by the Recipient, shall be deemed or construed as affecting the Recipient’s future obligations or NZTE’s future rights in respect of that term or any other terms of this Agreement.
14.4 If the Recipient is a Coalition that is a group of entities:
(a) if one or more of the Coalition Participants has not signed or otherwise acceded in writing to this Agreement, each Coalition Participant that has done so:
(i) does so as an agent for itself and each Coalition Participant who has not so signed nor acceded so that all Coalition Participants are jointly the Recipient; and
(ii) represents, warrants and undertakes to NZTE that it has taken, or will take, all steps required to bring clause 14.4(a)(i) into full effect; and
(b) each Coalition Participant is jointly and severally liable for the obligations of the Recipient under this Agreement.
14.5 Each notice or other communication under this Agreement must be in writing, and made by personal delivery, post or email. The initial postal address and email address for the relevant person or office holder of each party is set out in the Special Terms. No communication is to be effective until received. A communication is deemed to be received by the addressee:
(a) in the case of an email, the following working day;
(b) in the case of personal delivery, when delivered; and
(c) in the case of a letter, four working days after posting.
14.6 This Agreement will be governed by and construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.