1. LIQUID IT TERMS AND CONDITIONS
All services and products supplied by Liquid IT Limited (“Liquid IT”) to the Client are supplied subject to the following Terms and Conditions. Where Services are supplied under a Statement of Work signed by Liquid IT and the Client and the clauses of the Statement of Work conflict with these Terms and Conditions then the clauses of that Statement of Work shall take priority over these Term and Conditions.
2. THE SERVICES
2.1 Both Parties’ obligations:
Both Parties agree to:
Act in good faith and demonstrate honesty, integrity, openness and accountability in their dealings with each other
Discuss matters affecting the delivery of the Services, whenever necessary
Notify each other immediately of any actual or anticipated issues that could:
Significantly impact on the Services or the Charges
Receive media attention, and
Comply with all applicable laws and regulations.
2.2 Client’s obligations:
The Client must:
Provide Liquid IT with any information it has reasonably requested to enable the delivery of the Services
Make decisions and give approvals reasonably required by Liquid IT to enable delivery of the Services. All decisions and approvals must be given within reasonable timeframes, and
Pay Liquid IT the Charges for the Services as long as Liquid IT has delivered the Services and invoiced the Client, all in accordance with these Terms and Conditions.
2.3 Liquid IT’s obligations
Liquid IT must deliver the Services:
On time and to the required performance standards or quality set out in the agreed SoW or reasonably notified by the Client to Liquid IT from time to time
Within the amounts agreed as Charges, and
With due care, skill and diligence, and to the appropriate professional standard or in accordance with good industry practice as would be expected from a leading support partner in the relevant industry.
2.4 Liquid IT must:
Ensure that its Personnel have the necessary skills, experience, training and resources to successfully deliver the Services
Provide all equipment and resources necessary to deliver the Services, and
Comply with any codes of conduct notified by the Client to Liquid IT from time to time.
2.5 If Liquid IT is at the Client’s premises, Liquid IT must observe the Client’s policies and procedures, including those relating to health and safety, and security requirements. The Client must tell Liquid IT what the relevant policies and procedures are, and either give Liquid IT a copy of them or provide an internet link.
2.7 If the nature of the Services requires it, Liquid IT will deliver Services:
In a manner that is culturally appropriate for Māori, Pacific and other ethnic or indigenous groups, and
In a way that respects the personal privacy and dignity of all participants and stakeholders.
3. CHARGES AND PAYMENT
3.1 Charges & invoices
The Charges are the total maximum amount payable by the Client to Liquid IT for delivery of the Services. Charges include Fees and, where agreed, Expenses and Daily Allowances.
3.2 Liquid IT must provide valid tax invoices for all Charges upon completion of the services or delivery of the goods. The Client has no obligation to pay the Charges set out on an invoice, which is not a valid tax invoice.
A valid a tax invoice must:
Clearly show all GST due
Be in New Zealand currency
Be clearly marked ‘Tax invoice’
Contain Liquid IT’s name, address and GST number,
Contain the Client’s name and address and be marked for the person named in a Statement of Work or Purchase Order
State the date the invoice was issued
Provide a description of the Services supplied, including the amount of time spent in the delivery of the Services if payment is based on an Hourly Fee Rate or Daily Fee Rate
Contain the Client’s contract reference or purchase order number if there is one
State the Charges due, calculated correctly, and
Be supported by GST receipts if Expenses are claimed.
3.3 If the Client receives a valid tax invoice on or before the 5th Business Day of the month, the Client must pay that tax invoice on or before the 20th calendar day of that month. Any valid tax invoice received after the 5th Business Day of the month will be paid by the Client on the 20th calendar day of the month following the month it is received. The Client’s obligation to pay is subject to clauses 3.2 and 3.4.
3.4 If the Client disputes a tax invoice or any part of a tax invoice that complies with clause 3.2, the Client must notify Liquid IT within 5 Business Days of the date of receipt of the tax invoice. The Client must pay the portion of the tax invoice that is not in dispute. The Client may withhold payment of the disputed portion until the dispute is resolved.
4. INFORMATION MANAGEMENT
4.1 Information and Records
Liquid IT will:
Keep and maintain Records in accordance with prudent business practice and all applicable laws
Make sure the Records clearly identify all relevant time and Expenses incurred in providing the Services
Make sure the Records are easy to access, and
Keep the Records safe.
4.2 Liquid IT will give information to the Client relating to the Services that the Client reasonably requests. All information provided by Liquid IT will be in a format that is usable by the Client and delivered within a reasonable time of the request.
4.3 Liquid IT will co-operate with the Client to provide information immediately if the information is required by the Client to comply with an enquiry or its statutory, parliamentary, or other reporting obligations.
4.4 Liquid IT will make its Records available to the Client for 7 years after the end of the financial year to which they relate (unless already provided to the Client earlier).
4.5 Liquid IT will make sure that Records provided by the Client or created for the Client, are securely managed and securely destroyed on their disposal.
5. THE CONTRACTUAL RELATIONSHIP
5.1 Independent contractor
Nothing in these Terms and Conditions constitutes a legal relationship between the Parties of partnership, joint venture, agency, or employment. Liquid IT is responsible for the liability of its own, and its Personnel’s, salary, wages, holiday or redundancy payments and any GST, corporate, personal and withholding taxes, ACC premiums or other levies attributable to Liquid IT’s business or the engagement of its Personnel.
5.2 Neither Party can represent the other
Neither Party has authority to bind or represent the other Party in any way or for any purpose.
5.3 Permission to transfer rights or obligations
Neither party may transfer any of its rights or obligations under these Terms and Conditions only if it has the other party’s prior written approval. Neither party will unreasonably withhold its approval.
6.1 Rules about subcontracting
Liquid IT must not enter into a contract with someone else to deliver any part of the Services without the Client’s approval.
6.2 Liquid IT’s responsibilities
Liquid IT is responsible for ensuring the suitability of any Subcontractor and the Subcontractor’s capability and capacity to deliver that aspect of the Services being subcontracted.
6.3 Liquid IT must ensure that:
each Subcontractor is fully aware of Liquid IT’s obligations under these Terms and Conditions, and
any subcontract it enters into is on terms that are consistent with these Terms and Conditions.
6.4 Liquid IT continues to be responsible for delivering the Services under these Terms and Conditions even if aspects of the Services are subcontracted.
7.1Where insurance is a requirement
Liquid IT’s will ensure its risks of doing business are adequately covered, whether by insurance or otherwise. Liquid IT will:
take out insurance, with a reputable insurer, and maintain that insurance cover during the provision of Services and for a period of 3 years after the End Date, and
within 10 Business Days of a request from the Client provide a certificate confirming the nature of the insurance cover and proving that each policy is current.
8. CONFLICTS OF INTEREST
8.1 Avoiding Conflicts of Interest
Liquid IT warrants that as at the Start Date, it has no Conflict of Interest in providing the Services.
8.2 Liquid IT will do its best to avoid situations that may lead to a Conflict of Interest arising.
8.3 Commitment to inform the Client
Liquid IT will inform the Client immediately, and in writing, if any Conflict of Interest arises in relation to the Services. If a Conflict of Interest does arise the Parties will discuss, agree and record in writing whether it can be managed and, if so, how it will be managed. Each Party must pay its own costs in relation to managing a Conflict of Interest.
9. RESOLVING DISPUTES
9.1 Steps to resolving disputes
The Parties agree to use their best endeavors to resolve any dispute or difference that may arise under these Terms and Conditions. The following process will apply to disputes:
A Party will notify the other if it considers a matter is in dispute
A Director of Liquid IT will attempt to resolve the dispute through direct negotiation with the nominated Senior Manager of the Client, and
If the senior managers have not resolved the dispute within 10 Business Days of it being referred to them, the Parties shall refer the dispute to mediation or some other form of alternative dispute resolution.
9.2 If a dispute is referred to mediation, the mediation will be conducted:
By a single mediator agreed by the Parties or if they cannot agree, appointed by the Chair of LEADR NZ Inc.
On the terms of the LEADR NZ Inc. standard mediation agreement, and
At a fee to be agreed by the Parties or if they cannot agree, at a fee determined by the Chair of LEADR NZ Inc.
9.3 Each Party will pay its own costs of mediation or alternative dispute resolution under this clause 9.
9.4 Obligations during a dispute
If there is a dispute, each Party will continue to perform its obligations under these Terms and Conditions as far as practical given the nature of the dispute.
9.5 Taking court action
Each Party agrees not to start any court action in relation to a dispute until it has complied with the process described in clause 9.1, unless court action is necessary to preserve a Party’s rights.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Ownership of Intellectual Property Rights
Pre-existing Intellectual Property Rights remain the property of their current owner.
10.2 New Intellectual Property Rights in the Deliverables become the property of the Client when they are created.
10.3 Liquid IT grants to the Client a perpetual, non-exclusive, worldwide and royalty-free licence to use, for any purpose, all Intellectual Property Rights in the Deliverables that are not owned by the Client. This licence includes the right to use, copy, modify and distribute the Deliverables.
10.4 Liquid IT indemnity
Liquid IT warrants that it is legally entitled to do the things stated in clause 10.3 with the Intellectual Property Rights in the Deliverables.
10.5 Liquid IT warrants that Pre-existing and New Intellectual Property Rights provided by Liquid IT and incorporated in the Services and Deliverables do not infringe the Intellectual Property Rights of any third party.
10.6 Liquid IT indemnifies the Client in respect of any expenses, damage or liability incurred by the Client in connection with any third party claim that the delivery of the Services or Deliverables to the Client or the Client’s use of them, infringes a third party’s rights. This indemnity is not subject to any limitation or cap on liability that may be stated elsewhere in these Terms and Conditions.
11. CONFIDENTIAL INFORMATION
11.1 Protection of Confidential Information
Each Party confirms that it has adequate security measures to safeguard the other Party’s Confidential Information from unauthorised access or use by third parties, and that it will not use or disclose the other Party’s Confidential Information to any person or organisation other than:
To the extent that use or disclosure is necessary for the purposes of providing the Deliverables or Services or in the case of the Client using the Deliverables or Services
If the other Party gives prior written approval to the use or disclosure
If the use or disclosure is required by law (including under the Official Information Act 1982), Ministers or parliamentary convention, or
In relation to disclosure, if the information has already become public, other than through a breach of the obligation of confidentiality by one of the Parties.
11.2 Obligation to inform staff
Each Party will ensure that its Personnel:
Are aware of the confidentiality obligations in these Terms and Conditions, and
Do not use or disclose any of the other Party’s Confidential Information except as allowed by these Terms and Conditions.
12. EXTRAORDINARY EVENTS
12.1 No fault if failure due to an Extraordinary Event
Neither Party will be liable to the other for any failure to perform its obligations under these Terms and Conditions where the failure is due to an Extraordinary Event.
12.2 Obligations of the affected Party
A Party who wishes to claim suspension of its obligations due to an Extraordinary Event must notify the other Party as soon as reasonably possible. The Notice must state:
The nature of the circumstances giving rise to the Extraordinary Event
The extent of that Party’s inability to perform under these Terms and Conditions
The likely duration of that non-performance, and
What steps are being taken to minimise the impact of the Extraordinary Event on the delivery of Services.
12.3 Alternative arrangements requiring immediate termination
If the Client, acting reasonably, requires the Services to be supplied during the period affected by an Extraordinary Event, then despite clause 12.4, the Client may terminate the Services immediately by giving Notice.
12.4 Termination of Services
If a Party is unable to perform any obligations under this Contract for 20 Business Days or more due to an Extraordinary Event, the other Party may terminate this Contract immediately by giving Notice.
If a Party breaches these Terms and Conditions and the other Party does not immediately enforce its rights resulting from the breach that:
Does not mean that the Party in breach is released or excused from its obligation to perform the obligation at the time or in the future, and
Does not prevent the other Party from exercising its rights resulting from the breach at a later time.
13.2 New Zealand law, currency and time
These Terms and Conditions will be governed and interpreted in accordance with the laws of New Zealand. All money is in New Zealand dollars. Dates and times are New Zealand time.
13.3 No poaching
Neither party will, without the other’s written consent, deliberately solicit for employment or hire any person who is or has been employed by the other and involved in the delivery of the Services. This does not apply where a person has responded to a legitimate advertisement.
13.4 Clauses that remain in force
The clauses that by their nature should remain in force on expiry or termination of Services do so, including clauses 4 (Information management), 7 (Insurance), 9 (Resolving disputes), 10 (Intellectual Property Rights), 11 (Confidential Information), 13 (General) and 14 (Definitions).
14.1 When used in these Terms and Conditions the following terms have the meaning beside them:
Business Day: A day when most businesses are open for business in New Zealand. It excludes Saturday, Sunday, and public holidays. A Business Day starts at 8.30am and ends at 5pm.
Client: The Client is the purchaser of the Services.
Charges: The total amount payable by the Client to Liquid IT. Liquid IT’s Charges include Fees and any Expenses and Daily Allowances.
Confidential Information: Information that:
Is by its nature confidential
Is marked by either Party as ‘confidential’, ‘in confidence’, ‘restricted’ or ‘commercial in confidence’
Is provided by either Party or a third party ‘in confidence’
Either Party knows or ought to know is confidential, or
Is of a sensitive nature or commercially sensitive to either Party.
Conflict of Interest: A Conflict of Interest arises if a Party or its Personnel’s personal or business interests or obligations do or could conflict or be perceived to conflict with its obligations under this Contract. It means that its independence, objectivity or impartiality can be called into question. A Conflict of Interest may be:
Actual: where the conflict currently exists
Potential: where the conflict is about to happen or could happen, or
Perceived: where other people may reasonably think that a person is compromised.
Daily Allowance: An allowance to cover accommodation, meals and incidentals for Liquid IT’s Personnel if they are required in order to deliver the Services or to travel overnight away from their normal place of business. The amount of any Daily Allowance must be agreed by the parties in advance of being incurred. A Daily Allowance is similar to a per diem.
Daily Fee Rate: If Liquid IT’s fee rate is expressed as a Daily Fee Rate this is the fee payable for each day spent in the delivery of Services. A day is a minimum of 8 working hours.
Deliverables: A tangible output resulting from the delivery of Services. A deliverable may be a document, a piece of equipment, goods, information or data stored by any means including all copies and extracts of the same.
Expenses: Any actual and reasonable out-of-pocket costs incurred by Liquid IT in the delivery of the Services.
Extraordinary Event: An event that is beyond the reasonable control of the Party immediately affected by the event. An Extraordinary Event does not include any risk or event that the Party claiming could have prevented or overcome by taking reasonable care. Examples include:
Acts of God, lightning strikes, earthquakes, tsunamis, volcanic eruptions, floods, storms, explosions, fires, pandemics and any natural disaster
Acts of war (whether declared or not), invasion, actions of foreign enemies, military mobilisation, requisition or embargo
Acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, rebellion, insurrection, revolution or military usurped power or civil war, or
Contamination by radioactivity from nuclear substances or germ warfare or any other such hazardous properties.
Fees: The amount payable to Liquid IT for the time spent in delivery of the Services, excluding any Expenses and Daily Allowances.
GST: The goods and services tax payable in accordance with the New Zealand Goods and Services Tax Act 1985.
Hourly Fee Rate: If Liquid IT’s fee rate is expressed as an Hourly Fee Rate this is the Fee payable for each hour spent delivering the Services.
Intellectual Property Rights: All Intellectual Property Rights and interests, including copyright, trademarks, designs, patents and other proprietary rights, recognised or protected by law.
New Intellectual Property Rights: Intellectual Property Rights developed after the date of this Contract and incorporated into the Deliverables.
Notice: A formal or legal communication from one Party to the other.
Party: The Client and Liquid IT are each a Party to this Contract, and together are the Parties.
Personnel: All individuals engaged by either Party in relation to the Servicesor the delivables. Examples include: the owner of the business, its directors, employees, Subcontractors, agents, external consultants, specialists, technical support and co-opted or seconded staff.
Pre-existing Intellectual Property Rights: Intellectual Property Rights developed before the date of this Contract. It does not cover later modifications, adaptations or additions.
Records: All information and data necessary for the management of the Services and the deliverables. Records include, but are not limited to, reports, invoices, letters, emails, notes of meetings, photographs and other media recordings. Records can be hard copies or soft copies stored electronically.
Services: All work, tasks and Deliverables that Liquid IT will perform and deliver under this Contract.
Subcontractor: A person, business, company or organisation contracted by Liquid IT to deliver or perform part of Liquid IT’s obligations under this Contract.
Terms and Conditions: refers to these standard terms and conditions