Schedule 2 Standard Terms and Conditions v Nov 2015

1. Length of contract

1.1. This Contract starts on the Start Date, and unless terminated earlier or extended in accordance with Schedule 1, continues until the End Date.

2. The services

Both Parties' obligations
2.1 Both Parties agree to:

(a) act in good faith and demonstrate honesty, integrity, openness, and accountability in their dealings with each other;

(b) discuss matters affecting this Contract or the delivery of the Services, whenever necessary;

(c) notify each other immediately of any actual or anticipated issues that could:

(i) significantly impact on the Services or the cost of the Services;

(ii) receive media attention; and

(d) comply with all applicable laws, regulations and codes of conduct.
NZTE's obligations
2.2 NZTE must:

(a) provide the Service Provider with any information it has reasonably requested to enable the delivery of the Services;

(b) make decisions and give approvals reasonably required by the Service Provider to enable the delivery of the Services. All decisions and approvals must be given within reasonable timeframes; and

(c) pay the Service Provider the Charges for the Services as long as the Service Provider has delivered the Services and invoiced NZTE in accordance with this Contract.
Service provider's obligations
2.3 The Service Provider must deliver the Services:

(a) on time and to the required standards or quality;

(b) within the amounts agreed as Charges; and

(c) diligently, effectively and to a high professional standard.

2.4 The Service Provider must:

(a) ensure that its Personnel have the necessary skills, experience, training and resources to successfully deliver the Services; and

(b) provide all equipment and resources necessary to deliver the Services.

2.5 The Service Provider must use any Approved Personnel identified in Schedule 1 in delivering the Services. The Service Provider must obtain NZTE's prior written approval if it wishes to change or replace any Approved Personnel.

2.6 In delivering the Services the Service Provider agrees to be bound by the Standards of Integrity and Conduct issued by the State Services Commission (see

2.7 The Service Provider must comply with NZTE's policies and procedures including those relating to health and safety, and security requirements if any Services are provided at NZTE premises.

NZTE must tell the Service Provider what the relevant policies and procedures are, and either give the Service Provider a copy of them, or provide an internet link.

The Service Provider must have adequate health and safety policies for any Services provided outside NZTE premises and report to NZTE on compliance with all applicable health and safety laws and regulations as necessary to allow NZTE officers to discharge its due diligence obligations.

2.8 If the nature of the Services requires it, the Service Provider will deliver the Services:

(a) in a manner that is culturally appropriate for Māori, Pacific and other ethnic or indigenous groups; and

(b) that respect the personal privacy and dignity of all participants and stakeholders.

3. Charges and payment

Charges & invoices
3.1 The Charges are the total maximum amount payable by NZTE to the Service Provider for delivery of the Services. Charges include Fees, and where specified in Schedule 1, Expenses and Daily Allowances.

3.2 The Service Provider must provide valid Tax Invoices for all Charges on the dates or at the times specified in Schedule 1.
3.3 If NZTE receives a valid tax invoice on or before the 5th Business Day of the month, NZTE must pay that tax invoice by the 20th calendar day of that month. Any valid tax invoice received after the 5th Business Day of the month will be paid by NZTE on the 20th calendar day of the month following the month it is received. NZTE’s obligation to pay is subject to clauses 3.4 and 11.7.

3.4 If NZTE disputes an invoice, or any part of an invoice, that complies with clause 3.2, NZTE will pay the portion of the invoice that is not in dispute. NZTE may withhold payment of the disputed portion until the dispute is resolved.

4. Contract management

Changing the Contract Manager
4.1 If a Party changes their Contract Manager they must tell the other Party, in writing, the name and contact details of the replacement within 5 Business Days of the change.

5. Records, reports and information

Keeping Records

5.1 Both Parties must keep and maintain full and accurate Records relating to this Contract and delivery of the Services. The Records must be easy to access and kept safe.

5.2 The Records must be accessible to NZTE during the length of the Contract and for 7 years after the End Date.

5.3 The Service Provider will prepare and give to NZTE relevant reports relating to the Services as reasonably requested by NZTE.
5.4 The Service Provider must give to NZTE any Records or other information reasonably requested by NZTE.

5.5 All information provided by the Service Provider must be in a format that is usable by NZTE, and delivered within a reasonable time of the request.

5.6 The Service Provider must co-operate with NZTE to provide information immediately if the information is required by NZTE to comply with an enquiry, or its statutory, parliamentary or other reporting obligations.

6. The contractual relationship

Permission to transfer rights or obligations
6.1 The Service Provider may transfer any of its rights or obligations under this Contract only if it has NZTE’s prior written approval. NZTE will not unreasonably withhold its approval.
No partnership, agency or employment
6.2 Nothing in this Contract constitutes a legal relationship between the Parties of partnership, joint venture, agency, or employment. The Service Provider is responsible for the liability of its own, and its Personnel’s salary, wages, holiday or redundancy payments and any GST, corporate, personal and withholding taxes, ACC premiums or other levies attributable to the Service Provider’s business or the engagement of its Personnel.
Neither Party can represent the other
6.3 Neither Party has authority to bind or represent the other Party in any way or for any purpose.
Non-exclusive appointment
6.4 The Parties agree that:

(a) the Service Provider’s appointment under this Contract is non-exclusive; and

(b) NZTE may appoint third parties to provide services or deliverables similar to, or identical with, the Services or Deliverables at any time, or may provide them itself.

7. Subcontractors

Rules about subcontracting
7.1 The Service Provider must not enter into a contract with someone else to deliver any part of the Services without NZTE's prior written approval. The Service Provider must use good procurement practice in letting any subcontract. Good procurement practice means acting with integrity, being open, fair and accountable and achieving value for money.
The Service Provider's responsibilities
7.2 The Service Provider is responsible for ensuring the suitability of any Subcontractor and the Subcontractor's capability and capacity to deliver that aspect of the Services being subcontracted.

7.3 The Service Provider must ensure that:

(a) each Subcontractor is fully aware of the Service Provider's obligations under this Contract; and

(b) any subcontract it enters into is on terms that are consistent with this Contract.

7.4 The Service Provider continues to be responsible for delivering the Services under this Contract even if any aspects of the Services are subcontracted.

8. Insurance

Service Provider to cover own risks
8.1 It is the Service Provider's responsibility to take out and maintain insurance coverage for the length of this Contract, and for a period of three years after the End Date, in amounts and against risks that are normal for businesses similar to that of the Service Provider, including insurance against public liability and property damage and, where professional advice is provided, professional indemnity insurance.

8.2 Within 10 Business Days of a request from NZTE the Service Provider must provide a copy of the insurance policy and a certificate proving that it is current.

9. Conflicts of interest

Avoiding Conflicts of Interest
9.1 The Service Provider warrants that as at the Start Date, it has no Conflict of Interest in providing the Services or entering into this Contract.

9.2 The Service Provider must do its best to avoid situations that may lead to a Conflict of Interest arising.
Obligation to tell NZTE

9.3 The Service Provider must tell NZTE immediately, and in writing, if any Conflict of Interest arises in relation to the Services or this Contract. If a Conflict of Interest does arise the Parties must discuss, agree and record in writing how it will be managed. Each Party must pay their own costs in relation to managing a Conflict of Interest.

10. Resolving disputes

Steps to resolving disputes
10.1 The Parties agree to use their best endeavours to resolve any dispute or difference that may arise under or in connection with this Contract. The following process will apply to disputes:

(a) a Party must notify the other if it considers a matter is in dispute.

(b) the Contract Managers will attempt to resolve the dispute through direct negotiation.

(c) if the Contract Managers have not resolved the dispute within 10 Business Days of notification, they will refer it to the Parties' senior managers, or equivalent, for resolution.

(d) if the senior managers, or equivalent, have not resolved the dispute within 10 Business Days of it being referred to them, the Parties shall refer the dispute to mediation under clause 10.2 or some other form of alternative dispute resolution.

10.2 If a dispute is referred to mediation under this clause 10.2, the mediation will be conducted:

(a) by a single mediator agreed by the Parties, or if they cannot agree, appointed by the Chair of LEADR New Zealand Inc (Lawyers Engaged in Alternative Dispute Resolution);

(b) on the terms of the LEADR New Zealand In(c) standard mediation agreement; and

(c) at a fee to be agreed by the Parties, or if they cannot agree, at a fee determined by the Chair of LEADR New Zealand Inc.

10.3 Each Party will pay its own costs of mediation under clause 10.2.
Obligations during a dispute
10.4 If there is a dispute, each Party will continue to perform its obligations under this Contract as far as practical given the nature of the dispute.
Taking court action
10.5 Each Party agrees not to start any court action in relation to a dispute until they have complied with the process described in clause 10.1, unless court action is necessary to preserve a Party's rights.

10.6 Each Party submits to the exclusive jurisdiction of the courts of New Zealand in relation to any dispute or difference arising out of or in connection with this Contract, or any question about its existence, breach, termination or invalidity.

11. Ending this contract

No fault termination
11.1 NZTE may terminate this Contract:

(a) at any time by giving 20 Business Days' Notice to the Service Provider; or

(b) immediately by giving Notice to the Service Provider if the termination is due to a change in government policy or a change in appropriation
Immediate termination
11.2 NZTE may terminate this Contract immediately, by giving Notice, if the Service Provider:

(a) becomes bankrupt or insolvent;

(b) has an administrator, receiver, liquidator, statutory manager, mortgagee's or chargee's agent appointed;

(c) becomes subject to any form of external administration;

(d) ceases for any reason to continue in business or to deliver the Services;

(e) is unable to deliver the Services for a period of 20 Business Days or more due to an Extraordinary Event;

(f) is in breach of any of its obligations under this Contract and the breach cannot be remedied;

(g) repeatedly fails to perform or comply with its obligations under this Contract whether those obligations are minor or significant;

(h) does something, or fails to do something, that, in NZTE's opinion, results in damage to NZTE's reputation or business, or the reputation or business of the New Zealand government;

(i) has a Conflict of Interest that in NZTE's opinion is so material as to impact adversely on the delivery of the Services, NZTE or the New Zealand government; or

(j) provides information to NZTE that is misleading or inaccurate in any material respect.
If a breach has not been remedied
11.3 If a Party fails to meet the requirements of this Contract (Defaulting Party) and the other Party (Non-defaulting Party) reasonably believes that the failure can be remedied, the Non-defaulting Party must give a Notice (Default Notice) to the Defaulting Party.

11.4 A Default Notice must state:

(a) the nature of the failure;

(b) what is required to remedy it; and

(c) the time and date by which it must be remedied.

11.5 The period allowed to remedy the failure must be reasonable given the nature of the failure.

11.6 If the Defaulting Party does not remedy the failure as requiredby the Default Notice, the Non-defaulting Party may terminate this Contract immediately by giving a further Notice.

11.7 If NZTE gives a Default Notice to the Service Provider NZTE may also do one or both of the following things:

(a) withhold any payment of Fees due until the failure is remedied as required by the Default Notice; and/or

(b) if the failure is not remedied as required by the Default Notice, deduct a reasonable amount from any Fees due to reflect the reduced value of the Services to NZTE.
Service provider's obligations
11.8 On giving or receiving a Notice of termination, the Service Provider must:

(a) stop providing the Services;

(b) comply with any conditions contained in the Notice; and

(c) immediately do everything reasonably possible to reduce its losses, costs and expenses arising from the termination of this Contract.

11.9 On termination or expiry of this Contract, the Service Provider must, if requested by NZTE, immediately return or securely destroy all Confidential Information and other material or property belonging to NZTE.
Consequences of termination or expiry of this contract
11.10 The termination or expiry of this Contract does not affect those rights of each Party which:

(a) accrued prior to the time of termination or End Date; or

(b) relate to any breach or failure to perform an obligation under this Contract that arose prior to the time of termination or End Date.

11.11 If this Contract is terminated NZTE will only be liable to pay Charges that were due for Services delivered before the effective date of termination.
Handing over the services
11.12 The Service Provider will, within 10 Business Days of receiving Notice of termination, provide all reasonable assistance and cooperation necessary to facilitate a smooth handover of the Services to NZTE, or any person appointed by NZTE.

11.13 If the Parties agree the Service Provider will provide additional assistance to support any replacement service provider to deliver the Services. This support may be for a period of up to 3 months from the date of termination and at a reasonable fee to be agreed between the Parties, based on the fees and expenses stated in this Contract.

12. Intellectual Property Rights

Ownership of Intellectual Property Rights
12.1 Pre-existing Intellectual Property Rights remain the property of their current owner.

12.2 New Intellectual Property Rights in the Deliverables become the property of NZTE when they are created.

12.3 The Service Provider grants to NZTE a perpetual, non-exclusive, worldwide and royalty-free licence to use, for any purpose, all Intellectual Property Rights in the Deliverables that are not owned by NZTE. This licence includes the right to use, copy, modify and distribute the Deliverables.
Service provider indemnity
12.4 The Service Provider warrants that it is legally entitled to do the things stated in clause 12 with the Intellectual Property Rights in the Deliverables.

12.5 The Service Provider indemnifies NZTE and all other public service agencies in respect of any expenses, damage or liability incurred by NZTE in connection with any third party claim that the delivery of the Services or Deliverables to NZTE, or NZTE's use of them, infringes a third party's rights. This indemnity is not subject to any limitation or cap on liability that may be stated elsewhere in this Contract.

13. Confidential information

Permission to release Confidential Information
13.1 Each Party undertakes not to use or disclose the other Party's Confidential Information to any person or organisation other than:

(a) to the extent that use or disclosure is necessary for the purposes of providing the Services;

(b) if the other Party gives prior written approval to the use or disclosure;

(c) if the use or disclosure is required by law (including under the Official Information Act 1982) or parliamentary convention; or

(d) if the information has already become public, other than through a breach of the obligation of confidentiality by one of the Parties.

The Service Provider agrees to regard NZTE customer’s Confidential Information provided to the Service Provider for the purposes of providing the Services under this Contract as NZTE’s Confidential Information as set out in this clause.
Obligation to inform staff
13.2 Each Party will ensure that their Personnel:

(a) are aware of the confidentiality obligations in this Contract; and

(b) do not use or disclose any of the other Party's Confidential Information except as allowed by this Contract.

14. Notices

Delivery of Notices
14.1 All Notices to a Party must be delivered by hand or sent by post, courier or facsimile to that Party's address for Notices stated in Schedule 1.

14.2 Notices must be signed by the appropriate manager or person having authority to do so.
Receipt of Notices
14.3 A Notice will be considered to be received:

(a) if it is delivered by hand, on the date it is delivered;

(b) if it is sent by post within New Zealand, on the 3rd Business Day after the date it was sent;

(c) if it is sent by post internationally, on the 7th Business Day after the date it was sent;

(d) if it is sent by courier, on the date it is delivered; or

(e) if it is sent by fax, on the sender receiving a fax machine report that it has been successfully sent.

14.4 A Notice received after 5pm on a Business Day, or on a day that is not a Business Day, will be considered to be received on the next Business Day.

15. Extraordinary events

No fault if failure to deliver
15.1 Neither Party will be liable to the other for any failure to perform its obligations under this Contract where the failure is due to an Extraordinary Event.
Obligations of the affected Party
15.2 A Party who wishes to claim suspension of its obligations due to an Extraordinary Event must notify the other Party as soon as reasonably possible. The Notice must state:

(a) the nature of the circumstances giving rise to the Extraordinary Event;

(b) the extent of that Party's inability to perform under this Contract;

(c) the likely duration of that non-performance; and

(d) what steps are being taken to remedy, or reduce the impact of the Extraordinary Event on the delivery of Services.
Alternative arrangements
15.3 NZTE may, after consulting with the Service Provider, make alternative arrangements to ensure performance of the Services during the period affected by the Extraordinary Event, including engaging alternative service providers. If NZTE makes alternative arrangements, it does so at its own cost.
Termination of Contract
15.4 If a Party is unable to perform any of its obligations under this Contract for 20 Business Days or more due to an Extraordinary Event, the other Party may terminate this Contract immediately by giving Notice.

16. General

Changes to this Contract
16.1 Any change to this Contract, including an extension of length of time of this Contract, or a change to the scope of the Services, must be in writing and signed by both Parties. A change can be made at any time after this Contract has been signed by both Parties.
This is the entire Contract
16.2 This Contract, including any Variation, records everything agreed between the Parties relating to the Services. It replaces any previous communications, negotiations, arrangements or agreements that the Parties had with each other relating to the Services before this Contract was signed, whether they were verbal or in writing.79 - 119327791
16.3 If a Party breaches this Contract and the other Party delays enforcing its rights resulting from the breach that:

(a) does not mean that the Party in breach is released or excused from its obligation to perform the obligation at the time or in the future; and

(b) does not prevent the other Party from exercising its rights resulting from the breach at a later time.
New Zealand law, currency and time
16.4 Except where Schedule 1 states otherwise, this Contract will be governed and interpreted in accordance with the laws of New Zealand. All money is in New Zealand dollars. Dates and times are New Zealand time.
Publication of information about this Contract
16.5 The Service Provider may disclose the existence of this Contract but must obtain NZTE's prior written approval before making reference to NZTE or this Contract in its publications, public statements, promotional material or promotional activities about this Contract.

16.6 Each Party undertakes not to post on websites, social networking sites or publicly display objectionable or derogatory comments about the Services, this Contract, each other, or any of their Personnel and to ensure that their Personnel do not do so.
Clauses that remain in force
16.7 The clauses that by their nature should remain in force on expiry or termination of this Contract do so, including clauses 5 (Records, reports and information), 8 (Insurance), 10 (Resolving disputes), 11 (Ending this Contract), 12 (Intellectual Property Rights), 13 (Confidential Information), 16 (General) and 17 (Definitions).

17. Definitions

17.1 When used in this Contract the following words in bold have the meaning beside them.

Approved Personnel A person who is engaged by the Service Provider to deliver the Services and is named in Schedule1. The Service Provider must use this person in the delivery of the Services and cannot change them without first obtaining NZTE's written approval.

Business Day A day when most businesses are open for business in New Zealand. It excludes Saturday, Sunday and public holidays. A Business Day starts at 8.30am and ends at 5pm.

Charges The total amount payable by NZTE to the Service Provider as stated in Schedule 1. The Service Provider Charges include Fees and any Expenses and Daily Allowances stated in Schedule 1. Charges are payable on successful delivery of the Services provided a valid Tax Invoice has been submitted.

Confidential Information Information that:

(a) is by its nature confidential;

(b) is marked by either Party as 'confidential', 'in confidence', 'restricted' or 'commercial in confidence';

(c) is provided by either Party, or a third party 'in confidence';

(d) either Party knows or ought to know is confidential; or

(e) is commercially sensitive to either Party.

Conflict of Interest A conflict of interest happens if a person's personal interests or obligations conflict with the responsibilities of their job or position. It means that their independence, objectivity or impartiality can be called into question. While conflicts of interest should be avoided wherever possible, conflicts often happen without anyone being at fault. It is not the emergence of a conflict of interest which is an issue, it is how it is managed that counts. A conflict of interest may be:

(a) actual: where the conflict currently exists;

(b) potential: where the conflict is about to happen, or could happen; or

(c) perceived: where other people may reasonably think that a person is compromised.

Contract The legal agreement between NZTE and the Service Provider that comprises this document and includes all Schedules, Variations and attachments.

Contract Manager The person named in Schedule 1 as the Contract Manager who is responsible for managing this Contract on behalf of one of the Parties. The Contract Managers are the day to day contacts for routine communications regarding this Contract and the Services. They are responsible for:

(a) managing the relationship between the Parties;

(b) overseeing the effective implementation of this Contract; and

(c) acting as a first point of contact for any issues that arise.

Daily Allowance An allowance to cover accommodation, meals and incidentals for the Service Provider's Personnel if they are required, in order to deliver the Services, to travel overnight away from their normal place of business.

The amount of any Daily Allowance must be agreed to in Schedule 1. A Daily Allowance is similar to a per diem.

Daily Rate If the Service Provider's fee rate is expressed as a daily rate this is the fee payable for each day spent in the delivery of Services. A day is a minimum of 8 working hours. The Service Provider will be paid for travel time, other than normal commuting time.

Deliverables A tangible output resulting from the delivery of the Services. Specific deliverables are stated in Schedule 1. A deliverable may be a document, a piece of equipment, goods, information, or data stored by any means including all copies and extracts of the same.

End Date The date this Contract is due to end as stated in Schedule 1.

Extraordinary Event An event that is beyond the reasonable control of the Party immediately affected by the event. An Extraordinary Event does not include any risk or event that the Party claiming could have prevented or overcome by taking reasonable care. Examples include:

(a) acts of God, lightning strikes, earthquakes, tsunamis, volcanic eruptions, floods, storms, explosions, fires, pandemics and any natural disaster;

(b) acts of war (whether declared or not), invasion, actions of foreign enemies, military mobilisation, requisition or embargo;

(c) acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, rebellion, insurrection, revolution or military usurped power or civil war; and

(d) contamination by radio-activity from nuclear substances or germ warfare or any other such hazardous properties.

Expenses Any actual and reasonable out-of-pocket costs incurred by the Service Provider in the delivery of the Services and agreed to in Schedule 1.

Fees The amount payable to the Service Provider for the time spent in delivery of the Services calculated on the basis stated in Schedule 1, excluding any expenses and allowances.

GST The goods and services tax payable in accordance with the New Zealand Goods and Services Tax Act 1985.

Hourly Rate If the Service Provider's fee rate is expressed as an hourly rate this is the fee payable for each hour spent in the delivery of the Services.

Intellectual Property Rights An intangible asset that consists of human knowledge or ideas. Some examples are patents, copyrights, trademarks, design, software and similar industrial, commercial or artistic property. It can include modifications, upgrades and versions.

Milestone A phase or stage in the delivery of Services resulting in a measurable output. Payment of fees is usually due on the satisfactory delivery of a milestone.

Notice A formal or legal communication from one Party to the other. It must be in writing and meet the requirements of clause 14 (Notices).

NZTE means New Zealand Trade and Enterprise and includes NZTE customer(s) where the Services are being provided to or for the benefit of NZTE customer(s), as expressed or intended by the Contract.

Although the definition of NZTE includes NZTE customer(s), unless specified otherwise, there is no privity of contract between the Service Provider and NZTE customer(s). NZTE may enforce any obligations owed to NZTE customer(s) under this Contract, but no direct action will be brought by NZTE customer(s).

Personnel All individuals engaged by either Party in relation to this Contract, or the delivery of the Services, including the Approved Personnel. Examples include: the owner of the business, its directors, employees, Subcontractors, agents, external consultants, specialists, technical support and co-opted or seconded staff.

Pre-existing Intellectual Property Rights Intellectual Property Rights developed before the date of this Contract or outside the scope of this Contract. It does not cover later modifications, adaptations or additions.

Records All information and data necessary for the management of this Contract and the delivery of Services. It includes reports, invoices, letters, e-mails, notes of meetings, photographs and other media recordings. Records can be hard copies or soft copies stored electronically.

Services All work, tasks and Deliverables stated in Schedule 1 that the Service Provider must perform and deliver under this Contract.

Schedule An attachment to this Contract with the title 'Schedule'. All Schedules are part of this Contract.

Start Date The date when this Contract starts. Services must not be delivered before the Start Date.

Subcontractor A person, business, company or organisation contracted by the Service Provider to deliver or perform part of the Service Provider's obligations under this Contract.

Service Provider The person, business, company or organisation named as the Service Provider in page 1. It includes its Personnel, successors, and permitted assignees.

Tax Invoice The Service Provider must invoice NZTE for the Services. The invoice must be a valid Tax Invoice which means it must:

(a) clearly show all GST due;

(b) be in New Zealand currency;

(c) be clearly marked 'Tax Invoice';

(d) include the Service Provider's name and GST number, if the Service Provider has one;

(e) include NZTE’s name and address and marked for the attention of NZTE's Contract Manager, or such other person stated in Schedule 1;

(f) record the date the invoice was issued; and

(g) name this Contract and a description of the Services supplied including the amount of time spent in the delivery of the Services if payment is based on an Hourly or Daily Rate.

The invoice must also include the following details:

(a) include NZTE's purchase order number if there is one;

(b) correctly calculate the Charges due; and

(c) be supported by GST receipts if Expenses are claimed and any other verifying documentation reasonably requested by NZTE.

Variation A written agreement signed by both Parties that changes any aspect of this Contract.