1.1 NZTE agrees to provide the Secondee to perform the Services for the Term as a Secondee to the Organisation. The Secondee will provide the Services for the number of hours per week stated in Schedule 1.
1.2 Subject to this Agreement, NZTE will remain the employer of the Secondee during the Term and will retain liability and responsibility for its non-delegable statutory obligations as an employer. The Secondee’s employment agreement (the Employment Agreement) set out in Appendix 1 shall continue in force during the Secondment and in the event of any conflict between the Employment Agreement and the terms of this Agreement the Employment Agreement shall prevail.
1.3 The Organisation will take steps to ensure that the Secondee is able to, and does, report to and carry out all reasonable, lawful instructions and directions of the Manager during the Secondment.
2. Secondee is a representative of the Organisation2.1 The parties agree that the Services performed by the Secondee under this Agreement are performed by the Secondee as a representative of the Organisation, and the Organistion authorises the Secondee to use the Organisation’s email system, letterhead and other facilities to the extent necessary for the performance of the Services.
3. Supervision and assistance
3.1 The Organisation agrees to provide professional management and supervision of the Secondee during the Secondment. This includes:
3.1.1 the general induction of the Secondee into the Organisation’s business;
3.1.2 providing the Secondee with the resources he or she needs to perform the Services;
3.1.3 agreeing on clear performance expectations with the Secondee, including processes for performance feedback and for recording and assessing development;
3.1.4 providing regular briefings to NZTE on the Secondee’s performance and progress during the secondment; and
3.1.5 discussing any concerns or difficulties related to the secondment with NZTE as soon as they arise, in the first instance with the NZTE Contact Person specified in Schedule 1.
3.2 The Organisation will provide the Secondee with the facilities set out in Schedule 1, and otherwise with adequate work space, facilities and accessories to perform the Services.
3.3 The Organisation acknowledges that regular contact between NZTE and the Secondee is necessary. In the case of a part-time Secondment, the Organisation will do nothing to impede the performance by the Secondee of his or her duties in relation to NZTE.
3.4 The Organisation agrees that any potential performance or disciplinary issues shall be referred to NZTE as soon as possible so that they can managed by NZTE (in consultation with the Organisation).
4. Secondment Fee and Administration Fee
4.1 If the Term is a period of:
4.1.1 three months or more, for each month worked by Secondee, the Organisation will pay to NZTE an amount equivalent to the remuneration paid to the Secondee (including salary, gratuities, allowances, benefits and any incentive/bonus or other payments) and any employer contributions made by NZTE to the Secondee for that month (the Secondment Fee). NZTE will in turn pay to the Secondee the Secondment Fee; or
4.1.2 less than three months, for each month worked by the Secondee, NZTE will pay the Secondment Fee to the Secondee.
4.2 Where the Secondment is not a full-time secondment, the Secondment Fee will be calculated as above, adjusted on a pro rata basis according to the proportion of each month worked by the Secondee as part of the Secondment.
4.3 In addition to the Secondment Fee, and if the Term is for three months or more, the Organisation will pay to NZTE the Administration Fee set out in Schedule 1 on a monthly basis. This fee is a contribution to office consumables and administration overheads. The Administration Fee may be increased should the Secondee be offered, and accept, medical insurance coverage provided by NZTE.
4.4 NZTE will invoice the Organisation monthly in advance for the Secondment Fee and Administration Fee (as applicable). Each invoice will be payable by the Organisation on the 20th day of the month in which it is received.
5. Costs and insurance
5.1 In accordance with the Organisation’s internal policy as notified to NZTE:
5.1.1 If the Term is a period of three months or more, the Organisation will pay the Secondee’s actual and reasonable costs in carrying out the Services (provided such costs are evidenced by GST invoices), being:
126.96.36.199 travel and accommodation costs for the Secondee while working and/or travelling overseas in connection with the services; and
188.8.131.52 travel and/or health insurance cover (in accordance with the Organisation’s internal policy) when the Secondee is required to travel overseas to carry out the Services; and
184.108.40.206 all costs associated with the Secondee attending training courses and conferences which the Secondee attends at the request of the Organisation, (Costs and Insurance); and
5.1.2 If the Term is a period of less than three months, NZTE shall pay the Secondee’s Costs and Insurance.5.2 The Organisation will ensure it has in place adequate workers’ compensation insurance or equivalent to cover the Secondee for the duration of the Secondment.
6.1 The Secondee will accrue annual leave, and be entitled to sick and bereavement leave, as outlined in his or her employment agreement with NZTE.
6.2 The Organisation will allow the Secondee to take such leave as the Secondee may be entitled to as an employee of NZTE. The Secondee will discuss and agree the timing of such leave with the Organisation, agreement of the Organisation not to be unreasonably withheld or delayed.
6.3 The Organisation will inform NZTE on a monthly basis of any annual or sick leave the Secondee has taken whilst on the Secondment.
7. Compliance with NZTE and Organisation policies
7.1 The Organisation will take steps to ensure that the Secondee understands, and will act accordingly, during the Secondment, that the Secondee is required to comply with all policies of NZTE and the Organisation and reasonable directions and procedures as notified in writing to the Secondee, including those relating to employment, occupational health, safety, confidentiality of information, security of premises and standards of integrity and conduct, etc.
7.2 Where the Secondee will be based in the Organisation’s office, the Organisation will take steps to ensure the health, safety and wellbeing of the Secondee during the term of the Secondment.
8. Intellectual Property
8.1 Subject to this clause 8, the Organisation shall own, as they come into existence, all Intellectual Property created as part of the provision by the Secondee of the Services.
8.2 Each Party shall execute all documents and do all acts and things reasonably required by the other Party for the purpose of giving effect to this clause 8.
9. Confidentiality and Disclosure of Information
9.1 Where the Organisation discloses Confidential Information to NZTE, NZTE will, except as expressly provided in this Agreement:
9.1.1 hold the Confidential Information in strict confidence, as a trade secret of the Organisation, maintain adequate security measures to safeguard the Confidential Information from access or use by unauthorised persons and keep the Confidential Information under control of NZTE;
9.1.2 use the Confidential Information solely for the purpose of performing its obligations under this Agreement, and not for any other purposes;
9.1.3 immediately inform the Organisation if it becomes aware of the possession, use or knowledge of the Confidential Information by any person not authorised to possess, use or have knowledge of the Confidential Information; and
9.1.4 if NZTE is required by law to disclose the Confidential Information, immediately notify the Organisation that such a requirement has arisen and allow the Organisation a reasonable opportunity to take any lawful action intended to restrict or prevent the disclosure of the Confidential Information. NZTE shall furnish only that portion of the Confidential Information which is legally required to be disclosed.
9.2 Unless otherwise agreed in writing by the parties, NZTE’s obligations under this Agreement will continue in full force and effect until the Confidential Information enters the public domain, other than directly or indirectly through the default of any NZTE directors, officers, employees, agents, contractors, or advisers under this clause 9.
9.3 NZTE will promptly return or destroy any Confidential Information of the Organisation on request, and certify to such return or destruction if necessary.
9.4 NZTE will require the Secondee to enter into such confidentiality undertakings as are reasonably requested by the Organisation or NZTE for the purposes of enabling the Secondee to provide the Services.
9.5 NZTE will require the Secondee to agree that he or she will not discuss or disclose any information, processes, materials, documents, costs or secrets related to any aspect of the business of NZTE or the Organisation without express agreement of the relevant organisation, unless legitimately required to do so as part of the Secondee’s duties and responsibilities in relation to his or her work for both organisations.
9.6 The Organisation will not request or instruct the Secondee to provide the Organisation with information that the Secondee may have access to as an employee of NZTE about other NZTE customers, suppliers or stakeholders. The Organisation will inform NZTE should the Secondee provide or offer to provide the Organisation with such information.
9.7 The Organisation will make the Secondee aware that should the Secondee purposefully view or use any other customer, supplier or stakeholder information for purposes unrelated to the Secondment, NZTE may terminate this Agreement immediately with all liability and cost for the Secondment and termination thereof remaining with the Organisation. NZTE will have the right to review other similar secondment arrangements and terminate these if appropriate with all liability and cost for these secondments and termination thereof remaining with the Organisation.
9.8 Subject to this clause 9, the terms of this Agreement are confidential to NZTE and the Organisation.
10. Permanent Offer of Employment
10.1 NZTE and the Organisation recognise that the Secondee is entitled to apply for advertised positions in either organisation or externally during the Term.
10.2 NZTE and the Organisation will ensure that the Secondee understands that in the event that the Secondee is a successful applicant for a position outside both organisations, the Secondee is expected to inform both Parties of his or her resignation under the terms and conditions set out in his or her NZTE employment agreement.
10.3 If the Secondee resigns from his or her position with NZTE, the Secondment Fee and Administration Fee will not be charged to the Organisation for the incompleted remainder of the Term.
11.1 NZTE will not be liable for any act or omission of the Secondee during the Secondment, including any liability by way of negligence or arising from any duty of care which may exist, whether by way of contract or otherwise.
11.2 The Organisation warrants that it will not cause NZTE to be in breach of any legal obligation owed by NZTE to the Secondee.
11.3 In the unlikely event of any employment relationship issue raised by the Secondee arising from acts or omissions of the Organisation, the Organisation will assist and co-operate with NZTE to resolve the issue and the Organisation will be liable for any costs or damages suffered by NZTE, including the cost of any legal advice and representation in responding to the Secondee.
11.4 In the unlikely event of any liability or difficulties arising from the acts or omissions of the Secondee, the Organisation will be responsible for resolving the difficulties and paying the liabilities, and if the acts or omissions cause NZTE any direct loss or damages, then the Organisation will reimburse NZTE upon NZTE providing reasonable supporting information of such loss or damages.
11.5 If any party communicates with NZTE regarding a liability, difficulties or a dispute they have in relation to the Secondee or the Secondee’s work, then the Organisation:
11.5.1 will take over the matter by advising the other party that NZTE has no involvement in the matter; and
11.5.2 will advise the other party that they are to communicate with the Organisation if there is anything more to discuss.
11.6 Except to the extent that the claim or liability is occasioned by the Secondee’s fraud, serious misconduct or deliberate breach of duty, the Organisation will indemnify the Secondee in accordance with the standard policy for its employees.
12. Termination12.1 Either Party may terminate this Agreement prior to the completion of the Term by giving the other Party at least one month’s written notice.
13. Clauses that remain in force13.1 The clauses that, by their nature, should remain in force on expiry or termination of this Agreement do so, including clauses 9, 11, and this clause 13.
14.1 Neither NZTE nor the Secondee shall, by virtue of this Agreement, be or for any purpose be deemed to be an employee, partner or agent of the Organisation.
14.2 No agreement or understanding varying or extending this Agreement shall be legally binding upon either party unless in writing and signed by both Parties.
14.3 This Agreement shall be governed by and construed in accordance with the laws of New Zealand.
14.4 The Secondee’s terms and conditions of employment with NZTE are attached as Appendix 1 for information purposes only and do not form part of this Agreement.
15.1 In this Agreement unless the context otherwise requires:
Agreement means this agreement including the Signature Page, Schedule 1 and Schedule 2;
Confidential Information means information that is by its nature confidential, information that is marked as such, information that is commercially sensitive or information that the receiving party knows or ought to know is confidential;
Intellectual Property means all statutory, proprietary and common law rights in patents, designs, layout designs, copyright, trademarks, confidential information, unpatented know-how, inventions and databases, whether registered or unregistered, and any applications to register any of the same, whether any of which are currently existing or arising in the future, anywhere in the world;
Manager means any person for the time being who will be acting as the Secondee’s superior during the Secondment;
Party means a Party to this Agreement and Parties has a corresponding meaning;
Premises has the meaning set out in Schedule 1;
Secondee means the person specified in Schedule 1;
Secondment means the secondment contemplated by this Agreement;
Services means those services described in Schedule 1; and
Term means the term of this Agreement, which begins on the Secondment Start Date and ends at 5:00pm on the Secondment End Date.