1.1 In this Agreement, the following terms have the following meanings unless the context requires otherwise:
Agreement means this Agreement, including these General Terms, the “Contribution Letter” and any appendices to this Agreement;
Commencement Date the date the Customer counter-signs the Contribution Letter;
Contribution Letter means the “NZTE Investment Contribution Letter” executed by NZTE and the Customer.
Customer means the NZTE customer specified in the Contribution Letter;
Default Event means an event specified in clause 4.2 of these General Terms;
Expiry Date means the date that Funding is paid by NZTE to the Service Provider for the Project;
Funding means the funding or any part of the funding (as the context requires) payable by NZTE to the Customer in accordance with the terms of this Agreement, as referred to in the Contribution Letter;
General Terms means these General Terms;
Maximum Amount Payable means the “Amount” specified in the Contribution Letter;
NZTE means New Zealand Trade and Enterprise;
Project means the project specified in the Contribution Letter;
Report means a report that is specified in the Contribution Letter as a condition of funding; and
Service Provider means the third party service provider that the Customer engages to complete the Project, as specified in the Contribution Letter.
1.2 In this Agreement:
(a) except in the Contribution Letter 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 Contribution Letter will prevail.
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 upon the following conditions being met:
(a) receipt of an invoice from the Service Provider for NZTE’s portion of the cost of the Project;
(b) the completion of the Project to NZTE’s satisfaction.
(c) a Default Event has not occurred (unless it has been remedied to NZTE’s satisfaction);
(d) the Customer has otherwise complied with its obligations under this Agreement; and
(e) this Agreement has not been terminated.
3. CUSTOMER’S RESPONSIBILITIES
3.1 The Customer will:
(a) provide NZTE with any Report detailed in the Contribution Letter and any other reports as reasonably requested by NZTE;
(b) 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;
(c) immediately inform NZTE, and keep NZTE informed, of any Default Event or matter that may:
(i) adversely affect the Customer’s ability to carry out the Project; or
(ii) result in a breach of any term of this Agreement by the Customer;
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 Customer does not comply with a material obligation, or a condition or warranty, under this Agreement;
(b) the Customer has provided NZTE with information in connection with or under this Agreement that (whether intentionally or not) is materially incorrect or misleading (including by omission), 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 Customer and/or the Project no longer meet the criteria under which the Customer and Project were assessed and approved for Funding by NZTE;
(e) an event occurs which, in NZTE’s reasonable judgement, means provision of Funding to the Customer would no longer be an appropriate use of public funds;
(f) an event occurs which, in NZTE’s reasonable judgment, could result in the Customer 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 Customer 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) the Customer 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 material part of the Customer’s assets; or ceases to carry on its operations or business (or a material part of them) in New Zealand.
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 Customer require the Customer 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 there has been a Default Event which NZTE reasonably considers is not capable of remedy, or which has not been remedied by the Customer within the period specified in clause 4.3 above, then, without limiting NZTE’s other rights or remedies, NZTE may do any one or more of the following:
(a) withhold all or any part of the Funding;
(b) by notice to the Customer require the Customer immediately to pay to NZTE the amount of Funding that NZTE paid to the Service Provider;
(c) terminate this Agreement.
4.5 Either party may terminate this Agreement on one months’ written notice to the other.
4.6 Clauses 4.4, 5, 6, 7, 8, 9, 10 and 13 survive expiry or termination of this Agreement.
4.7 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 Customer 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) 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
(i) 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 Customer 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 thereunder, and that records the Customer creates and/or holds in relation to this Agreement may be “public records” for the purposes of the PR Act.
6.1 The Customer 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 Customer 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;
(d) neither this Agreement nor the Project infringe or will infringe any rights of third parties (including valid third party intellectual property rights);
(e) 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 Customer to NZTE. Where a conflict of interest has arisen or is likely to arise in future, the Customer 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; and
(f) 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.
7.1 The Customer 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 willful act or omission of, or breach of this Agreement by, the Customer or the Customer’s employees, agents, contractors, subcontractors and/or advisors.
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 that it receives from 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;
(c) by NZTE to other government entities or its Minister where such disclosure is reasonably required by them to assist with the performance of their functions, and NZTE shall make clear the confidential nature of the information before any such disclosure; or
(d) as required by law.
8.2 The Customer acknowledges that NZTE is subject to the Official Information Act 1982 and the Crown Entities Act 2004, and that information NZTE holds relating to the Customer, 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 parties agree that no party will initiate court proceedings while mediation is in process. However, this clause 9.3 will not limit or affect the right of NZTE or the Customer to apply to a court at any time for any interim or preliminary relief in respect of the Dispute.
10. NAMES, MARKS, AND PUBLICITY
10.1 Other than as specified in this Agreement, the Customer 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 Customer 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.
10.2 The Customer 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.
10.3 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.
11.1 No variation or amendment to this Agreement, the Project, or any Project Plan will be effective unless it is in writing and signed by both parties.
12.1 This Agreement is personal to the Customer and cannot be assigned, novated or otherwise transferred to any third party by the Customer, without NZTE’s prior written approval.
13.1 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.
13.2 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 Customer, shall be deemed or construed as affecting the Customer’s future obligations or NZTE’s future rights in respect of that term or any other terms of this Agreement.
13.3 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 Contribution Letter. 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, when recieved;
(b) in the case of personal delivery, when delivered; and
(c) in the case of a letter, seven days after posting, provided that any communications not received before 5pm shall be deemed to be received on the next day.
13.4 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.