TERMS OF SERVICE
With the booking of consulting time on the basis of a Statemement of Work (SOW) the Client accepts the terms as following:
Terms of reference
This document sets out the agreement between the Client and Straub Consulting Ltd trading as SEBDATA in New Zealand, (the “Consultant”) for the provision of consultancy services.
The Client wishes to receive consulting for one or more, but not limited to, of the following services:
– Software integration, customisation and training
– Hardware set up, installation or fit outs
– Compliance with regulatory bodies
– Any other consulting service related to IT and software in the Clients business
Term and Termination
This Agreement will commence and is considered accepted with the booking of the first consulting session. Either Party may terminate this Agreement or any SOW, or any part of SOW by giving 1 month written notice
The Services will be described in detail in the Statement of Work (SOW). The Consultant will provide suitably qualified and experienced resource (the “Consultant”) with the skills, qualifications and experience to perform the Services.
Statement of Work (SOW)
the Client and the Consultant may from time to time agree on a SOW for the performance of certain services. On its execution each SOW will be deemed in incorporate and be governed by the terms set out in the body of this Agreement Each SOW must set out the following:
– A description of the relevant services, including deliverables and outcomes.
– Pricing information.
– the Client and the Consultant Key Contacts for that SOW
– Anything else that the Client may require.
Each SOW is confirmed as accepted upon booking of the first consulting session related to the SOW by both parties.
The Client’s Manager
The Consultant will report to the Client’s key contact as set out in the SOW.
The Consultant will comply with all:
lawful directions from the Client in relation to the Services;
laws applicable to the provision of the Services;
and the Client standards and policies as are notified to the Consultant;
have the experience, skills and qualifications necessary to perform the Services;
perform the Services to the best of his/her knowledge and experience, using due diligence and care;
No person shall be engaged in the Services except for the Consultant and those persons otherwise agreed to in writing by the Client. Such persons shall be deemed to be additional “Consultants” and subject to all the provisions that apply to the Consultant in this agreement. interest is applied to past-due accounts at a specific percentage
the Client Resources
the Client will provide the following resources:
A designated, quiet workplace (desk) that allows for focused working at the place of work as outlined in the SOW
A car park available at the place of work as outlined in the SOW
Other resources as outlined in the SOW
Fees and Payment
The Consultant will invoice the Client fortnightly in relation to the Services performed during the preceding fortnight. The invoice will include details of the hours worked and tax invoices for reimbursable expenses. To the extent that the supply of the Services is a “taxable supply”, the invoice must be a “tax invoice” as defined in the GST Act. the Client will pay the Consultant’s true and correct invoices within 5 days of the Client’s receipt of the invoice. Interest is charged to past-due accounts at a rate of [the NZ Official Cash Rate at invoice date plus 5%] per annum.
Nature of Relationship
The Consultant and the Client both confirm and agree that: in providing the Services, the Consultant is, in all respects, an independent contractor and not the Client’s employee; the Consultant will be solely liable for all of [its/his/her] debts, losses, expenses, ACC levies and taxation on [its/the Consultant’s] income; and unless agreed otherwise, the Consultant is not authorised to bind the Client or to act on the Client’s behalf.
Health and Safety
In the provision of the Services to the Client, or any third party on behalf of the Client, the Consultant must ensure it has policies and procedures in place to ensure compliance, including by its staff, with all health and safety legislation or codes of practice; must be familiar with and observe the Client’s health and safety procedures, have and ensure compliance with its own health and safety policy and safe work practices and maintain a commitment to compliance with both the Health and Safety in Employment Act 1992 and the Resource Management Act 1991. The Consultant must immediately notify the Client of any accidents involving the Consultant’s employees, agents, contractors or representatives while on the Client premises.
Access and Security
The Consultant shall take steps to protect the Client’s information and materials in the Consultant’s custody from unauthorised access, disclosure to or use by a third party, or misuse, damage or destruction by any person.
The Consultant agrees to:
store and maintain in duplicate a master copy of project documentation and unencrypted source code for software at a secure location acceptable to the Client; at any time provide the Client with one complete copy of project documentation or unencrypted source code upon request; protect itself against viruses, worms and other malicious programmes, files or other software devices.
The Consultant must ensure that its personnel do not:
disclose to any person any passwords or other information, or release any security swipe cards or keys used for access to the Client property or premises; introduce any threat to the security, availability or integrity of the Client’s data and systems; and/or introduce any viruses or other malicious programmes or files into any software or the Client systems.
The Consultant must immediately notify the Client of any breach, or suspected breach, of the security, availability or integrity of the Client’s data and/or systems, including in relation to the matters outline in clause 12.3. the Client must, if necessary, allow reasonable access to the Client premises to the Consultant’s employees, agents, contractors and representatives for the purpose of providing the Services. The Consultant must take all reasonable steps to ensure all persons’ access the Client premises comply with all the Client security and operational requirements. The Consultant must promptly notify the Client in writing once it is aware that, in respect of any place of work at any the Client property to which the Consultant’s employees, agents, contracts and representatives have access: any hazard may or does exist, or any situation may arise or has arisen where any person may not be safe or harm may result to any person; and/or any accident or serious harm to any person has occurred – in which case the Consultant must promptly notify the Client of the preventative action taken or proposed; and/or any improvement or prohibition notice is likely to be, or has been issued. the Client may refuse access of any person if, in the opinion of the Client, that person does not satisfy the the Client security or operational requirements, or is otherwise not appropriate. The Consultant must end the direct and indirect involvement with this Agreement of any person as requested by the Client, if in the opinion of the Client, that person does not satisfy any the Client security or operational requirement, or is otherwise, in the opinion of the Client, not appropriate.
In the course of performing the Services, the Consultant may acquire confidential information including the terms of this agreement, any of the Client’s secret processes or trade secrets, and any information concerning the Client’s organisation, operations, administration, methods, business or finances or those of the Client’s customers or contractors (“Confidential Information”). The Consultant must ensure that the Confidential Information is kept strictly confidential by the Consultant at all times (even after this agreement has been terminated) and: not disclosed by the Consultant to any person other than on a “need to know” basis for the proper performance of the Services; not used or attempted to be used: for the Consultant’s own benefit; or in any manner which may directly or indirectly injure or cause loss or detriment to the Client; and the Consultant must use [their/his or her] best endeavours to prevent disclosure or publication of any Confidential Information. Confidential Information does not include information which is legally required to be disclosed, or which is generally known by the public other than by a breach of this clause. Confidential Information includes, but is not limited to: computer data and information being personal information including names, addresses, personal, medical or business affairs of persons associated with either Party; information relating to the organisation, methods, administration, operation, business affairs, services provided by or to third parties or financial or commercial arrangements of either party, or persons associated with either party; and information of any nature, technical or otherwise, relating to any product or process in which the Client, or persons associated with the Services on behalf of the Client, are involved. The Consultant must store and keep all materials and documentation containing Confidential Information in secure custody which is appropriate depending on the form of such materials and the nature of the Confidential Information in accordance with the Client instructions. The Consultant must notify the Client, as soon as practicable, following a request made to the Consultant for information that is the Client Confidential Information and follow the Client’s instructions as to how that request is dealt with. The obligations contained in this clause survive the termination of this Agreement.
Any materials, including intellectual property, developed by the Consultant in the course of providing the Services (acting with the Client or separately) shall be vested and deemed always to have been vested in the Client as sole owner. If the Consultant so requests in writing, the Client may grant a licence of some or all of that material to the Consultant on a non-exclusive and otherwise agreed basis. The Consultant grants the Client a perpetual, irrevocable, non-exclusive and royalty free licence to use, copy, modify and sublicence any pre-existing intellectual property that the Consultant provides to the Client under this agreement. The Consultant warrants that its supply of any intellectual property under this agreement, and the Client’s exploitation of that intellectual property in accordance with this agreement, does not infringe the rights, including the intellectual property rights, of any third party.
Developed Intellectual Property
All developed IP will vest absolutely and exclusively in the Client on its creation and, to the extent such ownership does not vest in the Client as a result of this clause, it will be and will be deemed to have been, assigned to the Client on its creation in material form, free and clear of any encumbrance or security interest.
Compliance with the Client Policies the Client may request that the Consultant’s personnel comply with specific the Client rules and/or policies. The Consultant will: give copies of the the Client rules and/or policies to such personnel as the Client directs; ensure that such personnel comply with the the Client rules and/or policies; if requested by the Client, deliver to the Client signed acknowledgements from each individual that they will comply with the the Client rules and/or policies; and notify the Client if the Consultant becomes aware of any material breach by any such personnel and, if appropriate, take disciplinary action against such personnel.
Assignment and Sub-contracting
The Consultant must not: directly or indirectly assign any of its benefits or burdens under this Agreement without the prior written approval of the Client; or sub-contract any of its obligations or responsibility under this Agreement to any third party without the prior written approval of the Client. the Client’s approval must not be unreasonably withheld where the Consultant proposes to sub-contract any of its obligations to a related company (as defined in the Companies Act 1993). The Consultant will not be relieved of any of its liabilities or obligations under this Agreement by entering into a sub-contract and the Consultant shall be liable to the Client for the acts, defaults and omissions of the sub-contractor as fully as if they were the acts, defaults or omissions of the Consultant. The Consultant shall be responsible for ensuring the suitability of the sub-contractor for the work proposed to be carried out and for ensuring that the work performed by the sub-contractor meets the requirements of this Agreement.
Indemnity and Liability
Indemnity the Client indemnifies the Consultant (including its officers, employees and agents) for damage, loss or cost suffered or incurred by the Consultant, arising directly or indirectly in connection with any breach of this Agreement, by the Client or through the negligent, fraudulent or wrongful act or omission of the Client’s employees, agents, contractors and representatives.
If the Consultant is held or found to be liable or otherwise required to pay an amount to the Client for any matter relating to or arising in connection with this Agreement, whether based on an action or claim in contract, equity, negligence, tort or otherwise (including any claims), the amount of damages are recoverable against the Consultant for all events, acts or omissions.
Duties upon Termination/Expiry
On the expiration or termination of this agreement, the Consultant must ensure that: at the Client’s request, all data, documents, records or papers in the Consultant’s possession or under the Consultant’s control which relate in any way to the Services or to the Client business are promptly returned to the Client; and all equipment or other property belonging to the Client is returned in a satisfactory condition.
Limitation of liability
Neither party will be liable to the other under the law of contract, tort, equity or otherwise for any indirect damages (meaning damages not arising in the ordinary course as a direct, natural or probable consequence of the act or omission complained of) arising out of or in connection with this Agreement. Each party’s liability to the other for damages, under the law of contract, tort, equity or otherwise, arising out of or in connection with this Agreement will be limited in aggregate to the amounts paid or payable by the Client under this agreement, provided that neither party’s liability will be limited under this clause in the case of: intentional wrong or fraud; unauthorised use of the other party’s intellectual property or confidential information; or breach of clause 14.3