The Client
Mark 2 Limited at Auckland, New Zealand (Supplier)
BACKGROUND
These General Terms (General Terms) set out the general provisions applying to the supply of information technology products and services to The Client by the Supplier.
The Client’s specific requirements for the supply of products and services from Supplier will be contained in separately executed Supply Agreements (such as the Supplier’s Services Agreement and Statements of Work) which will incorporate further Terms (each such agreement a Supply Agreement).
These General Terms are legally binding in addition to those in the Supply Agreement.
In each Supply Agreement, unless the context requires otherwise:
Affiliateof a party, means any person (including any holding company or subsidiary of the party or any member of its group of companies) from time to time that:
where "control" includes direct or indirect control.
Charges means the amounts payable by The Client to Supplier, as specified in the Supply Agreement.
Confidential Information means all information, know-how or material in any form relating to, or confidential or proprietary to the provider or provided by a party (the owner) which becomes known or is provided to the other party (the recipient) as a result of the course of dealings between them which is by its nature confidential, is designated by a party as confidential or which the recipient ought reasonably know is confidential, including any non-public, commercially sensitive or secret information relating to owner’s business, trade secrets, data, operations, customers, stakeholders, activities, planning, investigations, products, services, research and development and the contents of the Supply Agreement, but does not include any information to the extent the recipient can show the relevant information:
Effective Date means the date of execution of these General Terms by the last of the parties to execute them.
Force Majeure Event means any:
but does not include:
Intellectual Property means all intellectual property rights, title and interests (including common law rights and interests) in any jurisdiction including (without limitation):
GST means New Zealand goods and services tax, payable in accordance with the New Zealand Goods and Services Tax Act 1985.
Personnel of any entity means any director, officer, employee, contracted staff member or other worker of that entity or that entity’s Affiliates, contractors or agents.
Products means the products (including hardware and software) to be provided to The Client by or on behalf of Supplier under the Supply Agreement.
Services means the services to be provided to The Client by or on behalf of Supplier under the Supply Agreement.
Subcontractor means any person that performs any of Supplier’s obligations under the Supply Agreement, excluding Supplier employees.
The Client means the party or parties who enter into this Agreement with Sentient.
Working Day means any day of the week (other than a Saturday, Sunday or a public holiday observed in Auckland, New Zealand) between the hours of 8:30am and 5:30pm New Zealand time.
In each Supply Agreement, unless the context requires otherwise:
These General Terms commence on the Effective Date and will remain in effect for so long as any Supply Agreement is in effect.
The Client and Supplier may from time to time agree to enter into a Supply Agreement.
Each Supply Agreement, together with the provisions of these General Terms, will constitute a separate agreement.
Each party represents that it is authorised to enter into and perform its obligations under the Supply Agreement.
Each party agrees it will perform all its obligations under the Supply Agreement in compliance with any applicable laws and regulations from any local, provincial, national, state, or federal government or government agency.
Each Supply Agreement is entered into by The Client on its own behalf and for the benefit of its Affiliates and will, with any necessary modifications, apply to the supply of Products and Services to any The Client Affiliate and be enforceable by each of them under the Contracts (Privity) Act 1982. Any acts or omissions by a The Client Affiliate, which if committed by The Client would be a breach of the Supply Agreement, will be deemed to be committed by such The Client Affiliate and Supplier must avail itself or any and all rights and remedies directly against such The Client Affiliate
Supplier will provide the Products and Services in accordance with the Supply Agreement with professional standards of diligence, care and attention using Personnel with suitable skills, education and experience.
The Client is not entering into any form of exclusive arrangements with Supplier for supply of products or services by entering into the Supply Agreement. The Client will not be prevented from obtaining products or services similar to or the same as those supplied under the Supply Agreement from anyone else.
Supplier will ensure that it (and its Subcontractors) does not directly or indirectly introduce any computer viruses, worms, software bombs or similar items in the Products or Services or to The Client’s systems.
Supplier will comply with all The Client’s information management and retention policies and practices, technical architecture and product standards and other policies, practices and standards in force from time to time and of which Supplier has been notified.
The Client may, from time to time, require other suppliers to provide it with products and/or services in relation to the Supply Agreement. Supplier agrees that it will co-operate with such other suppliers (at no additional cost) as reasonably requested by The Client. If Supplier fails to so co-operate, it will be deemed to be in material breach of the Supply Agreement.
Supplier will ensure that all Charges are calculated and applied as set out in the Supply Agreement.
Supplier will ensure that each invoice issued by it is:
If The Client has a genuine dispute in relation to all or any portion of an invoice submitted by Supplier, The Client may withhold payment of the amount subject to the dispute. If reasonably necessary, either party may refer the disputed payment to the disputes process set out in clause 8 (Dispute Resolution) for resolution. The Client will pay the undisputed amount when it becomes due and payable in accordance with the terms of the Supply Agreement and Supplier will continue to perform its obligations under the Supply Agreement while the dispute is being resolved.
All amounts set out in the Supply Agreement shall be exclusive of GST. Amounts payable are inclusive of all other government taxes, value added taxes, withholding taxes, duties, imposts and levies of a similar nature (Applicable Taxes), however designated, assessed or levied on Supplier in relation to the Agreement (including penalties thereon). Amounts payable by The Client are inclusive of all withholding taxes. Where The Client is required by law to make payment to Supplier subject to the deduction of withholding taxes, the payment shall be made subject to such deduction or withholding. Payment by The Client to the Supplier of the net amount shall be a complete and final discharge by The Client of its obligation to make the relevant payment. If any amounts paid by The Client to Supplier are subsequently assessed by the relevant taxation or other authority to be subject to any Applicable Taxes, The Client may in its discretion either:
(a) withhold an amount equal to such tax assessed so as to set off such amount against any future payments to be made by The Client; or
(b) require Supplier to pay an amount equal to such tax assessed in which event Supplier shall, at the request of The Client, pay such amount to The Client and The Client will pay such amount to the relevant taxation or other authority.
The party (Recipient) receiving Confidential Information of the other party (Owner) will (except with Owner’s prior written approval):
Regardless of clause 7.1 (Confidentiality obligations), Supplier will not make any press release or offer any customer reference in relation to the Supply Agreement without The Client's prior written consent, which may be withheld, or granted on such conditions, as The Client determines unless:.
Except where a party seeks urgent interlocutory relief, unless a party has first complied with clause 8 (Dispute resolution) it may not commence court proceedings.
If a dispute, disagreement, question or difference arises between the parties in relation to the Supply Agreement (Dispute), either party may give the other written notice requiring that the Dispute be determined in accordance with this clause 8 (Dispute resolution) (Dispute Notice). A party’s Dispute Notice must specify:
The party receiving the Dispute Notice must, within 5 Working Days of receiving the Dispute Notice, reply to the other party by notice in writing (Dispute Notice Response) specifying:
The parties will enter into negotiations to resolve the Dispute within 10 Working Days of the giving of the Dispute Notice. Negotiations will be held between the following representatives of the parties (who must have authority to settle the dispute):
Pending resolution of any Dispute, each party will:
Without prejudice to its other rights and remedies, and despite anything else in the Supply Agreement, if The Client reasonably believes that Supplier is in breach of the Supply Agreement, The Client may withhold payment of all or any part of the Charges, provided that:
Supplier will continue to perform its obligations under the Supply Agreement following any such withholding.
If any party or one of its Affiliates hires (whether as an employee, independent contractor or in any other capacity) any person who was, within three months prior to the hiring, an employee of the other party or one of its Affiliates as a result of a direct approach by that party and has been hired to carry out the same or substantially similar work to that he/she carried out for the other party or its Affiliate, the first party agrees to pay the other party a finder’s fee equal to 20% of that person’s annualised gross compensation at the time he or she left the employment of the other party or its Affiliate.
Either party may on written notice to the other party terminate the Supply Agreement if the other party:
Where The Client has the right to terminate the Supply Agreement, The Client may, at its discretion, partially terminate the Supply Agreement in respect of those parts which have not yet been performed by Supplier and can reasonably be severed from the remainder of the Supply Agreement.
Prior to the expiry or termination of all or any part of the Agreement and for a reasonable time thereafter, the Supplier will provide such assistance as is reasonably necessary and requested by The Client for an orderly assumption of the Services by a third party or The Client. The Client will pay the Supplier its reasonable costs and expenses of complying with this requirement.
Following the expiry or termination of all or any part of the Agreement:
For avoidance of doubt, the expiry or termination of a Supply Agreement will not affect the provisions of these General Terms as they are incorporated into any other Supply Agreement.
The expiry or termination of all or any part of a Supply Agreement will be without prejudice to the rights of the parties accrued up to the date of such expiry or termination.
In relation to each Supply Agreement, the provisions of the following clauses will remain in full force and effect following the expiry or termination of all or any part of the Supply Agreement: clauses 6 (Payment), 7 (Confidentiality), 8 (Dispute Resolution), 10 (Termination), 14 (Warranties) and 15 (General).
Notwithstanding any other provision of a Supply Agreement, neither The Client nor Supplier will be liable for any failure or delay in complying with any obligation under the Supply Agreement (excluding any payment obligation) if:
Performance of any obligation affected by a Force Majeure Event will be resumed as soon as practicable after the termination or abatement of the Force Majeure Event.
Supplier will retain during the term of the Supply Agreement and for a reasonable period afterwards, accurate records of the Charges made and Services provided.
Without prejudice to its obligations under a Supply Agreement, Supplier will permit The Client or its authorised representative (in any case the Auditor) on 5 Working Days prior written notice to have access to any premises under Supplier’s and its Affiliates’ and Subcontractors’ control to:
to the extent necessary for the Auditor to satisfy itself that Supplier’s obligations under the Supply Agreement and any contractual terms, regulations, statutory provisions and the like affecting The Client and relating to the Supply Agreement are being complied with. Supplier may request replacement of the Auditor if it reasonably considers the Auditor is unsuitable due to competitive conflict.
Access will be granted to the Auditor at any time during which the relevant premises are ordinarily open for business, provided that any authorised representative of The Client has first produced to Supplier any necessary authorisation from The Client and agrees to comply with all reasonable requirements of Supplier stipulated for the purpose of protecting the confidentiality of information.
Neither party will be entitled to directly or indirectly (including due to, or by way of, a change of control) assign, transfer or otherwise dispose of any of its rights or obligations under a Supply Agreement, except:
Supplier may not subcontract any part of a Supply Agreement (except for minor details, purchases of materials, and any Service for which the Subcontractor is named in the Supply Agreement or that is obvious on its face) without The Client’s prior written consent. Upon termination of a Supply Agreement, The Client may deal with any Subcontractor directly in relation to the subject matter of the Supply Agreement. If reasonably requested by The Client, Supplier will ensure that its Subcontractors enter into an agreement which enables The Client to take over the benefit and obligations of Supplier under the respective Subcontractor agreement in the event of termination of the Supply Agreement. Supplier will be responsible and liable for all acts and omissions of any Subcontractor. The entry by Supplier into a subcontract will not:
Supplier represents and warrants that:
Any notice or other communication to be given under a Supply Agreement may be in writing and delivered by hand, or registered mail to The Client or Supplier (as the case may be) at the respective addresses specified below. Receipt will be deemed upon delivery by hand, 3 Working Days after posting, or upon receipt of facsimile/email confirmation (whichever is applicable). A copy will also be supplied to The Client Legal Counsel.
Supplier:
Mark 2 Limited
Address: 180 Nile Road, Milford, Auckland
Attention: Marc Turner
Email: mturner@marktwo.co.nz
The Client:
Address: tba
Attention: The Client
Copy: N/A
Email: Client supplied email - on supply agreement
If any one or more of the provisions of a Supply Agreement will be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions will not in any way be affected, prejudiced or impaired.
No term or condition of a Supply Agreement will be deemed to have been waived and no delay, breach or default will be deemed to have been excused unless the waiver or excuse is in writing and signed by an authorised representative of the relevant party.
Each Supply Agreement and any documents appended to or referred to from it contains the entire understanding between The Client and Supplier concerning its subject matter and supersedes all previous agreements and understandings between the parties on this subject matter.
No Supply Agreement may be modified or amended except in writing signed by a duly authorised representative of each party; no other act, document, usage, or custom will be deemed to amend or modify the Supply Agreement.
Nothing in a Supply Agreement will be deemed to constitute either party as the agent, partner or joint venture of the other. Supplier, in providing the Products and Services to The Client under each Supply Agreement, is acting as an independent contractor.
Each Agreement may be executed in several counterparts (including facsimile copies), all of which when signed and taken together constitute a single agreement between the parties.
Each party will, at its own expense and when requested by the other party, promptly do, sign and deliver everything reasonably required for the purposes of and to give full effect to each Supply Agreement, its provisions and any transactions contemplated by it.
The Client may deduct from or set-off against any amount that is or may become payable by it to the Supplier in relation to a Supply Agreement any amount that is or may become payable to it by the Supplier in relation to a Supply Agreement.
Each Supply Agreement will be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
If requested by The Client, Supplier will enter into an Escrow Agreement with The Client in the form attached to the Supply Agreement. The Client will bear the costs in relation to such Escrow Agreement.