IDCARE Terms and Conditions of Trade - New Zealand V1.2

Background

• The Customer wishes to obtain the Services of IDCARE on the terms set out in this Agreement.
• IDCARE agrees to provide the Services on the terms set out in this Agreement.

Operative Clauses

1. Definitions and Interpretation

1.1 Definitions

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:

• was or becomes generally available to the public, other than because of a breach of an obligation of confidentiality owed to disclosing party;
• IDCARE agrees to provide the Services on the terms set out in this Agreement.
• was in the receiving party’s possession, without an obligation of confidentiality, prior to receipt from disclosing party; or
• is independently developed by the receiving party. 

‍Force Majeure Event means an event which:

• is outside of the reasonable control of the party claiming that the event has occurred;
• the adverse effects of that event could not have been prevented or mitigated against by that party by reasonable diligence or reasonable precautionary measures; and
• includes natural disasters, health pandemics, acts of terrorism, riots, civil disturbances, industrial disputes and strikes (other than strikes involving that party, its agents, employees or contractors).

IDCARE means Identity Care Australia & New Zealand Limited (ABN 84 164 038966), My Data Care Pty Ltd (ABN 35 643 544 950) and IDCARE Limited (NZBN9429041070109).

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. 
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‍Agreement means this Agreement(including any Schedules) in writing between IDCARE and the Customer for the provision of the Services. 
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‍Fee means the agreed fee for the Services as set out in the ratified IDCARE Services proposal.

1.2 Interpretation

In this Agreement: 

• headings are inserted for ease of reference only and will not form part of nor be used in the interpretation of this Agreement;
• words importing the singular will include the plural and vice versa, words importing a gender will include the other gender;
• reference to a person will be construed as a reference to an individual, firm, body corporate or other entity (whether incorporated or not), or, where a position is nominated, the individual occupying that position;
• where any inconsistency exists between this Agreement and the Proposal, the provisions of this Agreement will take precedence;
• reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
• reference to a party includes that party’s personal representatives, successors and permitted assigns;
• a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed;
• if a thing is to be done on a day which is not a Business Day, it must be done on the Business Day after that day;
• a reference to “including” should be read as “including, without limitation”;
• another grammatical form of a defined expression has a corresponding meaning;
• n expression defined in the Companies Act 1993 has the meaning given by the Companies Act 1993;
• a reference to dollars or $ is to New Zealand currency;
• no rule of construction applies to the disadvantage of a party because that party put forward this Agreement or any portion of it; and
• where this Agreement refers to the “satisfaction”, “consent”, “approval”, or similar indication of assent or consent on the part of any party in relation to a particular matter, in the absence of an express qualification that the party in question act “reasonably” or “in good faith” or in a particular manner such party may withhold the same for any reason in its absolute discretion.

2. Provision of Services

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:

• it is entitled to and has full right, capacity, power and authority to enter into and perform its obligations under this Agreement;
• it will act professionally and in a good workmanlike manner at all times in the provision of the Services, exercising professional skill, care and diligence, including by ensuring that the Services are reasonably fit for purpose ;
• it will comply with all relevant laws and the Code of Conduct and Ethics applying to the Customer;
• it nor any of its directors, subcontractors, agents or employees will disclose to any other party other than the Customer’s authorized points of contact any information about this Agreement or any information (particularly confidential or sensitive information) obtained when performing the Services (unless such disclosure is approved in writing by the Customer or required by law); and
• by entering into and complying with any of its obligations under this Agreement, IDCARE is not and will not be in breach of any agreement or undertaking with any other person (whether written or otherwise) or any law.

3. Fees and expenses

3.1 IDCARE will provide the Services in consideration for the payment by the Customer. Any payments so provided for in this Agreement are exclusive of GST (unless otherwise stated).

3.2 The Fee:

• must be paid by the Customer within twenty-eight (28) days of receiving a correctly rendered invoice from IDCARE.
• Must be paid in full; and
• In the event of a dispute, any items not disputed must still be paid.

3.3 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.

3.4 Annual Price Reviews:

• Both parties acknowledge that market conditions and other relevant factors may affect the pricing of the goods/services provided under this agreement.
• Therefore, the pricing of the goods/services shall be subject to an annual review by both parties, commencing on the anniversary date of this agreement.
• The purpose of the annual price review is to ensure that the pricing remains fair and reasonable, considering prevailing market conditions, changes in costs, and other relevant factors.
• Upon completion of the annual price review, IDCARE may propose adjustments to the pricing. Such proposals shall be communicated in writing to the other party.
• The parties shall engage in good faith negotiations to agree upon any proposed adjustments to the pricing. If an agreement is reached, the revised pricing shall be documented in writing.
• If the parties are unable to reach an agreement within 30 calendar days from the initiation of the price review, the current pricing shall continue in effect unless this agreement is terminated by either party, and the price review process shall be repeated on the subsequent anniversary date.

4. Conflict of interest

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.
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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. Terms of Agreement

5.1 The initial term of this agreement shall commence on the effective date and shall continue indefinitely until terminated by either party.
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5.2 The Customer may terminate this agreement for convenience by providing thirty (30) days written notice of termination.

6. Termination for default

6.1 If either party:

• fails to observe or perform any of its obligations pursuant to this Agreement;
• assigns this Agreement or any of its benefits or purports to assign, subcontract or otherwise divest itself of any of its obligations under this Agreement without the other party's written consent;
• enters into any arrangement or proceedings for the purpose of insolvency administration or is placed under official management;
• abandons or refuses to proceed with the provision of the Services; or
• is involved in or creates a conflict of interest under this Agreement,

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:

• The management of an Incident and proposed communications are not in compliance with the relevant Privacy laws and regulations of the relevant jurisdiction;
• The management of the event and proposed communications are likely to contribute to further the risk of serious harm experienced by impacted persons;
• The management of the Incident and proposed communications are inconsistent with IDCARE’s preliminary views of the likely assessment of serious harm to impacted persons based on the available information about the Incident provided to IDCARE by the customer or a third party they have engaged to respond to the Incident on their behalf;
• The management of the Incident and proposed communications are not timely and/or have not been managed in a way that recognises the need to mitigate the serious risk of harm to impacted persons in a timely way.

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. Consequences of termination

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:

• any accrued rights and liabilities of either party, including, where appropriate, the rights arising in respect of the breach giving rise to the right to terminate; or
• any provisions of this Agreement that are expressed to, or by their nature, survive termination or expiry of this Agreement.

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. Delay

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:

• continue to perform all other unaffected obligations in accordance with this document;
• use its best endeavours to continue to perform the affected obligations, whether by way of a work around or other methods;
• use its best endeavours to overcome the effects of the Force Majeure Event as soon as possible; and
• notify the other party as soon as it is no longer affected by the Force Majeure Event.

9. Liability

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:

• any fraudulent, negligent or wilful act or omission by such party;
• any claim that the provision or receipt of the Services, infringes the rights (including intellectual property rights) of any person; and
• any act or omission of the other Party causing death, personal injury or property damage; and
• any breach by such party of this agreement or any applicable laws.

10. Limitation of Liability

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. Insurance

11.1 IDCARE will, at its own expense, obtain and maintain the following Insurance Policies with a reputable insurer:

• public liability insurance with a minimum cover of $20,000,000 per claim.
• insurance against any liability which may arise under law, including relevant workers' or accident compensation legislation.
• professional indemnity insurance with a minimum cover of $5,000,000.

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. Dispute Resolution

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. Confidential Information

13.1 Each party will (and, if applicable, will procure that their Related Companies will):

• use all reasonable safeguards to keep the other party’s Confidential Information confidential and secure; and
• not use the other party’s Confidential Information except to the extent required to perform its obligations or exercise its rights in accordance with this Agreement.

13.2 Clause 13.1 will not apply to the extent the disclosure is:

• required to be disclosed by law or the rules of any stock exchange on which a party or any Related Company of that party is listed, in which case that party will:
  (i) as soon as reasonably practicable, unless prevented from doing so by any applicable law, notify the other party of the requirement, the Confidential Information that the party will disclose, and the date the party will disclose that Confidential Information;
  (ii) use any available discretion or exception not to disclose the other party’s Confidential Information; and
  (iii) use all reasonable endeavours to ensure that the recipient of the other party’s Confidential Information keeps the Confidential Information confidential.
• agreed by the other party before the disclosure is made;
• publicly available (or becomes publicly available) through no fault of the party making the disclosure;
• independently acquired or developed by the party making the disclosure without breaching any of its obligations under this Agreement or at law;
• lawfully required in accordance with the Tax Administration Act 1994 (for New Zealand), or the Tax Administration Act 1953 (Australia), or similar legislation from time to time; or
• lawfully acquired from a third party by the party making the disclosure, so long as that information is not obtained by that third party’s breach of its confidentiality obligations.

14. Compliance

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. Governing law

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. GST

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:

• reduced by the amount of that input tax credit; but
• increased by any GST payable by that other party in respect of the indemnity, reimbursement or contribution.

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:

• must refund to the other party any excess; and
• may recover from the other party any shortfall.

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:

• GST means a tax, levy, duty, charge and/or deduction or impost, together with any related additional tax, interest, penalty, fine or other charge calculated by reference to the value of anything supplied under this Agreement; and
• GST law means any law imposing a GST included in the Goods & Services Tax Act 1985 or, if that act does not exist for any reason, any act imposing or relating to a GST and any regulation made pursuant to any such act.

17. Notices

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:

• Four (4) days after deposit in the mail with postage prepaid;
• immediately upon delivery by hand;
• immediately via electronic message with confirmation of delivery;

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. Entire agreement

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. 

19. Assignment

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.

20. Counterparts

This Agreement may be executed in any number of counterparts. Together all counterparts make up one instrument.

21. Severability

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.

22. Relationship of the parties

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.

23. Publicity

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.