In this Agreement:
Business Day means any day except a Saturday or a Sunday or other public holiday in New Zealand or Australia.
Confidential Information means any information relating to either party, that has been disclosed in any form to the other party or otherwise learned or acquired by the receiving party under or in connection with this Agreement, which is identified by disclosing party as being confidential, or which due to the circumstances of disclosure the receiving party knows or ought to know is confidential, whether disclosed visually, orally or in writing, but excluding information that:
Force Majeure Event means an event which:
Group Company any company which is an IDCARE subsidiary or holding company or a subsidiary of a holding company as the terms “subsidiary” and “holding” company are defined by the Companies Act 1993. IDCARE shall be interpreted in this way.
Incident means a data breach arising from unauthorised access to information owned by the Customer and the Customer has engaged IDCARE to provide services in relation to the Incident. Services means the Services specified in the First Schedule or as otherwise agreed to in writing between the parties.
Agreement means this Agreement(including any Schedules) in writing between IDCARE and the Customer for the provision of the Services.
Fee means the agreed fee for the Services as set out in the Second Schedule.
In this Agreement:
2.1 IDCARE will provide the Services to the Customer in accordance with this Agreement.
2.2 IDCARE will not vary the Services provided without the written consent of the Customer.
2.3 IDCARE acknowledges and agrees that:
3.1 IDCARE will provide the Services in consideration for the payment by the Customer of the Fee detailed in the Second Schedule. Any payments so provided for in this Agreement are exclusive of GST (unless otherwise stated).
3.2 The Fee:
3.2 Failure to pay the invoice by the due date will result in a Consumer Price Index quarterly rate surcharge on the amount of the invoice owed (as published by the Statistics New Zealand under the “quarter index” category as the most recent quarter). This shall be calculated on the day after the due date and accumulate as a compounded rate every fourteen days thereafter until paid.
4.1 IDCARE acknowledges and agrees that to the best of its knowledge, information and belief, at the date of executing of this Agreement, no conflict of interest exists or is likely to arise in the provision of the Services pursuant to this Agreement.
4.2 IDCARE will take all necessary steps to ensure that its employees, agents and sub-contractors do not engage in any activity or obtain any interest, which is in conflict with the provision of the Services to the Customer pursuant to this Agreement.
4.3 If during this Agreement, a conflict of interest or a risk of conflict of interest arises (without limitation, because of work undertaken for any person other than the Customer) IDCARE will notify the Customer immediately in writing of that conflict of interest or risk.
4.4 The Customer may manage the conflict of interest as it reasonably considers appropriate provided it takes actions in compliance with relevant policies of the Customer. Management of a conflicts of interest issue by the Customer may include termination of this Agreement by the Customer without liability to IDCARE.
5.1 This Agreement will commence from the date hereof and continue in force for one (1) year or the earlier termination of this Agreement.
5.2 The Customer may terminate this agreement for convenience by providing thirty (30) days written notice of termination.
6.1 If either party:
the other party will notify the defaulting party in writing specifying the reason for the default and requiring the defaulting party, where possible, to remedy the failure or to show cause within thirty (30) days from the giving of such notice why the Agreement should not be terminated.
6.2 If the defaulting party fails to remedy the failure or to show cause within thirty (30) days to the satisfaction of the other party acting reasonably, the other party may without prejudice to any other rights, terminate this Agreement by notice.
6.3 IDCARE reserves the right to terminate this Agreement if IDCARE believes that:
6.4 Termination under Clause 6.3 shall result in the withdrawal of IDCARE services as at the termination date made in writing to the Customer. IDCARE shall issue in writing a notice to terminate the Agreement at the specified date and invite the Customer to provide a written response to the notice in seeking to address or remedy the reasons outlined in the notice. If the Customer fails to remedy the failure or to show cause within fifteen (15) days to the satisfaction of IDCARE acting reasonably, IDCARE may without prejudice to any other rights, terminate this Agreement by notice.
6.5 On receipt of any such response to the notice to terminate under Clause 6.3, it is IDCARE’s sole discretion (acting reasonably) to determine whether the reasons are sufficient, and if not, to issue an invoice only for the work performed under the First Schedule to the termination date. There shall be no further conditions or requirements on either party from the date of termination as it relates to this agreement.
7.1 On termination of Agreement, the parties are released from their respective obligations to continue to perform this Agreement, provided that such termination does not affect:
7.2 On expiry or termination of this Agreement, both parties agree that within seven (7) days from the date of expiry or termination IDCARE will return (or at the Customer’s option, destroy and certify the destruction of) any of the Customer’s property (including any confidential or sensitive information provided by the Customer to IDCARE or otherwise obtained by IDCARE during the course of providing the Services) in its possession or control.
8.1 A party to this Agreement will not be entitled to exercise its rights and remedies upon the default of the other party (whether at common law or under this Agreement) if that default is caused by a Force Majeure Event.
8.2 A party prevented from performing any of its obligations under this Agreement by a Force Majeure Event must:
9.1 Each party shall be liable according to law to the other party and its officers, directors, employees, principals and agents, for any and all loss, liability, damages, and expenses (including legal fees on a party-party basis) suffered or incurred by either of them to the extent such loss, liability, damage or expense is suffered or incurred, as a result of any of the following:
10.1 In no event will either party be liable for any consequential, incidental, indirect, special or punitive damage, loss or expenses or business interruption, lost business, lost profits or lost savings based on, resulting from, arising out of, or otherwise related to this Agreement.
11.1 IDCARE will, at its own expense, obtain and maintain the following Insurance Policies with a reputable insurer:
11.2 IDCARE must maintain these Insurance Policies for the Term of this Agreement and for a period of seven years after the expiry or termination of this Agreement. IDCARE will provide the Customer with current evidence of the insurance policy upon request.
12.1 If a dispute arises between the Customer and IDCARE in connection with this Agreement or the provision of the Services, either party will give a written notice of dispute to the other, which notice will identify and provide full details of the dispute, within seven (7) days of the dispute arising.
12.2 Notwithstanding the notification of a dispute, the parties will continue to perform their obligations pursuant to this Agreement.
12.3 Within fourteen (14) days of the written notice of dispute, the parties will confer at least once to resolve the dispute or to agree on methods of resolving the dispute.
12.4 If the dispute is not resolved within fourteen (14) days of the written notice of dispute, the dispute may be referred to mediation by either party or be the subject of litigation.
13.1 Each party will (and, if applicable, will procure that their Related Companies will):
13.2 Clause 13.1 will not apply to the extent the disclosure is:
14.1 IDCARE must, in carrying out its obligations under this Agreement, comply with all relevant statutes, regulations, and bylaws.
14.2 IDCARE and any person who performs or provides goods or services under this Agreement will comply with the requirements (including registration or licensing) of any relevant profession or industry.
15.1 This Agreement will be governed by and construed in accordance with, the laws of New Zealand. The parties hereby submit themselves to the jurisdiction of the Courts of New Zealand.
16.1 Where GST is imposed on a taxable supply for the purposes of the GST law, a party must pay GST on a taxable supply made to it under this Agreement, in addition to any consideration (excluding GST) that is payable for that taxable supply. \
16.2 A party making a taxable supply to another party under this Agreement must issue a tax invoice to the other party, setting out the amount of the GST payable by that other party.
16.3 If a party is required under this Agreement to indemnify another party or to make a reimbursement or contribution to another party, and that other party can obtain an input tax credit on an acquisition associated with that indemnity, reimbursement or contribution, the amount the party is required to pay is:
However, the amount of an indemnity, reimbursement or contribution is not reduced by the amount of an input tax credit if that credit has already been considered in calculating the amount of the indemnity, reimbursement or contribution.
16.4 The supplier of a taxable supply warrants that it is registered or will be registered for New Zealand Business Number and GST purposes, at each time a taxable supply is made. A party must continually indemnify the other party for any loss and damage it suffers as a result of a party not being registered for New Zealand Business Number and GST purposes. On request by the other party, a party must produce evidence that it is registered.
16.5 If an adjustment event results in the GST on a taxable supply being different from the GST recovered by a party, a party:
The recovery of any money from the other party is conditional on an adjustment note being given first.
16.6 Each party must do everything reasonable to assist each other party to comply with its GST obligations in relation to this Agreement.
16.7 For the purposes of this Clause, GST and GST law shall have the following meanings assigned to them:
17.1 Notices under this Agreement will be in writing and may be delivered by prepaid postage or by hand to each of the parties at the address specified in this Agreement or such other address as either party may specify by notice in writing to the other.
17.2 Notices will be deemed to be given:
provided that delivery of any notice pursuant to Clause 18.2(b) after 5.00 pm will be deemed delivery on the following Business Day.
18.1 This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes any and all prior discussions or previous agreements between the parties in relation to its subject matter.
18.2 No modification intended to be an amendment to this Agreement will have any effect unless made in writing and signed by an authorised officer of the Customer and by IDCARE. For the avoidance of doubt this shall include any standard terms and conditions of IDCARE which have no effect unless otherwise expressly agreed in writing by the parties and signed by an authorised officer of the Customer and by IDCARE.
Neither this Agreement nor any of the benefits or obligations may be assigned, subcontracted or otherwise divested by IDCARE outside of its Group Companies without the Customer's prior written consent.
This Agreement may be executed in any number of counterparts. Together all counterparts make up one instrument.
If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal, or otherwise enforceable, then shall be severed from this Agreement. In all other respects the terms and conditions of this Agreement shall remain in full force and effect.
This Agreement is not intended to create a relationship of employment, trust, partnership, joint venture or agency between the parties. No party to this Agreement is empowered to incur any obligation or make any representation on behalf of the other party without the express consent of that other party.
No party to this Agreement will disclose, distribute or otherwise communicate any media release, promotional material or publicity in connection with this Agreement, its relationship with the other party or otherwise refer to the other party or any service mark or trademark of the other party without the prior written approval of the relevant party. Each party may grant or withhold such approval in its sole discretion.