Standard Terms and Conditions – Services
1.1 This SoW starts on the Start Date. Services must not be delivered before the Start Date.
1.2 This SoW ends on the End Date unless terminated earlier.
2.1 Both Parties agree to:
a. act in good faith and demonstrate honesty, integrity, openness and accountability in their dealings with each other
b. discuss matters affecting this SoW or the delivery of the Services, whenever necessary
c. notify each other immediately of any actual or anticipated issues that could:
i. significantly impact on the Services or the Charges
ii. receive media attention, and
d. comply with all applicable laws and regulations.
2.2 The Client must:
a. provide LPS with any information it has reasonably requested to enable the delivery of the Services
b. make decisions and give approvals reasonably required by LPS to enable delivery of the Services. All decisions and approvals must be given within reasonable timeframes
c. pay LPS the Charges for the Services as long as LPS has delivered the Services and invoiced The Client, all in accordance with this SoW, and
d. prior to commencement of each Statement of Work, the Client will on-board LPS staff, which will include; H&S induction and compliance with Client policies.
2.3 LPS must deliver the Services:
a. on time and to the required performance standards or quality set out in Schedule 1 or reasonably notified by The Client to LPS from time to time
b. within the amounts agreed as Charges, and
c. 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 supplier in the relevant industry.
2.4 LPS must:
a. ensure that its Personnel have the necessary skills, experience, training and resources to successfully deliver the Services
2.5 If LPS is at The Client’s premises, LPS must observe The Client’s policies and procedures, including those relating to health and safety, and security requirements. The Client must tell LPS what the relevant policies and procedures are, and either give LPS a copy of them or provide an internet link.
2.6 If the nature of the Services requires it, LPS will deliver Services:
a. in a manner that is culturally appropriate for Māori, Pacific and other ethnic or indigenous groups, and
b. that respects the personal privacy and dignity of all participants and stakeholders.
3.1 The Charges are the total maximum amount payable by The Client to LPS for delivery of the Services. Charges include Fees and, where agreed, Expenses and Daily Allowances.
3.2 If the Client receives a valid tax invoice on or before the 3rd Business Day of the month, The Client must pay that tax invoice by the 20th calendar day of that month. Any valid tax invoice received after the 3rd 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, 3.4 and 11.10.
3.3 If The Client disputes a tax invoice or any part of a tax invoice that complies with clause 3.2, The Client must notify LPS within 10 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.
4.1 The persons named in Statement of Work as the SoW Managers are responsible for managing the SoW, including:
a. managing the relationship between the Parties
b. overseeing the effective implementation of this SoW, and
c. acting as a first point of contact for any issues that arise.
4.2 If a Party changes its SoW Manager it must tell the other Party, in writing, the name and contact details of the replacement within 5 Business Days of the change.
5.1 LPS must:
a. keep and maintain Records in accordance with prudent business practice and all applicable laws
b. make sure the Records clearly identify all relevant time and Expenses incurred in providing the Services
c. make sure the Records are easy to access, and
d. keep the Records safe.
5.2 LPS must give information to The Client relating to the Services that The Client reasonably requests. All information provided by LPS must be in a format that is usable by the Client and delivered within a reasonable time of the request.
5.3 LPS must 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.
5.4 LPS must make its Records available to the Client during the term of the SoW and for 7 years after the End Date (unless already provided to the Client earlier).
5.5 LPS must make sure that Records provided by the Client or created for the Client, are securely managed and securely destroyed on their disposal.
6.1 Nothing in this SoW constitutes a legal relationship between the Parties of partnership, joint venture, agency, or employment. LPS 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 LPS’s business or the engagement of its Personnel.
6.2 Neither Party has authority to bind or represent the other Party in any way or for any purpose.
6.3 LPS may transfer any of its rights or obligations under this SoW only if it has the Client’s prior written approval. The Client will not unreasonably withhold its approval.
7.1 LPS must not enter into a contract with someone else to deliver any part of the Services without the Client’s prior written approval. In selecting an appropriate Subcontractor LPS must be able to demonstrate value for money.
7.2 LPS 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.
7.3 LPS must ensure that:
a. each Subcontractor is fully aware of LPS’s obligations under this SoW, and
b. any subcontract it enters into is on terms that are consistent with this SoW.
7.4 LPS continues to be responsible for delivering the Services under this SoW even if aspects of the Services are subcontracted.
8.1 It is LPS’s responsibility to ensure its risks of doing business are adequately covered, whether by insurance or otherwise.
9.1 LPS warrants that as at the Start Date, it has no Conflict of Interest in providing the Services or entering into this SoW.
9.2 LPS must do its best to avoid situations that may lead to a Conflict of Interest arising.
9.3 LPS must tell the Client immediately, and in writing, if any Conflict of Interest arises in relation to the Services or this SoW. If a Conflict of Interest does arise the Parties must 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.
10. Resolving disputes
10.1 The Parties agree to use their best endeavours to resolve any dispute or difference that may arise under this SoW. The following process will apply to disputes:
a. a Party must notify the other if it considers a matter is in dispute
b. the SoW Managers will attempt to resolve the dispute through direct negotiation
c. if the SoW Managers have not resolved the dispute within 10 Business Days of notification, they will refer it to the Parties’ senior managers for resolution, and
d. 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.
10.2 Each Party will pay its own costs of mediation or alternative dispute resolution under this clause 10.
10.3 If there is a dispute, each Party will continue to perform its obligations under this SoW as far as practical given the nature of the dispute.
10.4 Each Party agrees not to start any court action in relation to a dispute until it has complied with the process described in clause 10.1, unless court action is necessary to preserve a Party’s rights.
11.1 LPS may terminate this SoW by giving 20 Business Days’ Notice to the Client, if The Client fails to pay Charges that are properly due, and are not in dispute under clause 3.4. The Charges must be overdue by 20 Business Days and LPS must have first brought this to the Client’s attention in writing within this period.
11.2 At any time during the term of this SoW LPS may notify the Client that it wishes to terminate this Contact by giving 20 Business Days’ Notice. The Client will, within 20 Business Days following receipt of LPS’s Notice, notify LPS whether, in its absolute discretion, it consents to LPS’s Notice of termination. If the Client:
a. consents, the SoW will be terminated on a date that is mutually agreed between the Parties, or
b. does not consent, the SoW will continue in full force as if LPS’s Notice of termination had not been given.
11.3 LPS may also terminate this SoW under clause 11.9.
11.4 The Client may terminate this SoW at any time by giving 20 Business Days’ Notice to LPS.
11.5 The Client may terminate this SoW immediately, by giving Notice, if LPS:
a. becomes bankrupt or insolvent
b. has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed
c. becomes subject to any form of external administration
d. ceases for any reason to continue in business or to deliver the Services
e. is in breach of any of its obligations under this SoW and the breach cannot be remedied
f. repeatedly fails to perform or comply with its obligations under this SoW whether those obligations are minor or significant
g. does something or fails to do something that, in the Client’s opinion, results in damage to the Client’s reputation or business
h. has a Conflict of Interest that in The Client’s opinion is so material as to impact adversely on the delivery of the Services or The Client, or
i. provides information to the Client that is misleading or inaccurate in any material respect.
11.6 If a Party fails to meet the requirements of this SoW (defaulting Party) and the other Party (non-defaulting Party) reasonably believes that the failure can be remedied, the non-defaulting Party must give a Notice (default Notice) to the defaulting Party.
11.7 A default Notice must state:
a. the nature of the failure
b. what is required to remedy it, and
c. the time and date by which it must be remedied.
11.8 The period allowed to remedy the failure must be reasonable given the nature of the failure.
11.9 If the defaulting Party does not remedy the failure as required by the default Notice, the non-defaulting Party may terminate this SoW immediately by giving a further Notice.
11.10 On giving or receiving a Notice of termination, LPS must:
a. stop providing the Services
b. comply with any conditions contained in the Notice, and
c. immediately do everything reasonably possible to reduce its losses, costs and expenses arising from the termination of this SoW.
11.11 On termination or expiry of this SoW, LPS must, if requested by the Client, immediately return or securely destroy all Confidential Information and other material or property belonging to the Client.
11.12 The termination or expiry of this SoW does not affect those rights of each Party which:
a. accrued prior to the time of termination or End Date, or
b. relate to any breach or failure to perform an obligation under this SoW that arose prior to the time of termination or End Date.
11.13 If this SoW is terminated The Client:
a. will only be liable to pay Charges that were due for Services delivered before the effective date of termination, and
b. may recover from LPS or set off against sums due to LPS, any Charges paid in advance that have not been incurred.
11.14 LPS will, within 10 Business Days of the End Date, provide all reasonable assistance and cooperation necessary to facilitate a smooth handover of the Services to the Client or any person appointed by the Client.
11.15 If the Parties agree, LPS will provide additional assistance to support any replacement supplier to deliver the Services. This support may be for a period of up to
3 months from the date of termination and at a reasonable fee to be agreed between the Parties, based on the Fees and Expenses stated in this SoW.
12.1 Pre-existing Intellectual Property Rights remain the property of their current owner.
12.2 New Intellectual Property Rights in the Deliverables become the property of the Client when they are created.
12.3 LPS 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.
12.4 LPS warrants that it is legally entitled to do the things stated in clause 12.3 with the Intellectual Property Rights in the Deliverables.
12.5 LPS warrants that Pre-existing and New Intellectual Property Rights provided by LPS and incorporated in the Services and Deliverables do not infringe the Intellectual Property Rights of any third party.
12.6 LPS 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 this SoW.
13.1 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:
a. 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
b. if the other Party gives prior written approval to the use or disclosure
c. if the use or disclosure is required by law (including under the Official Information Act 1982), Ministers or parliamentary convention, or
d. 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.
13.2 Each Party will ensure that its Personnel:
a. are aware of the confidentiality obligations in this SoW, and
b. do not use or disclose any of the other Party’s Confidential Information except as allowed by this SoW.
14.1 All Notices to a Party must be delivered by hand or sent by post, courier, fax or email to that Party’s address for Notices stated in the Statement of Work.
14.2 Notices must be signed or in the case of email sent by the appropriate manager or person having authority to do so.
14.3 A Notice will be considered to be received:
a. if delivered by hand, on the date it is delivered
b. if sent by post within New Zealand, on the 3rd Business Day after the date it was sent
c. if sent by post internationally, on the 7th Business Day after the date it was sent
d. if sent by courier, on the date it is delivered
e. if sent by fax, on the sender receiving a fax machine report that it has been successfully sent, or
f. if sent by email, at the time the email enters the recipient’s information system as evidenced by a delivery receipt requested by the sender and it is not returned undelivered or as an error.
14.4 A Notice received after 5pm on a Business Day or on a day that is not a Business Day will be considered to be received on the next Business Day.
15.1 Neither Party will be liable to the other for any failure to perform its obligations under this SoW where the failure is due to an Extraordinary Event.
15.2 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:
a. the nature of the circumstances giving rise to the Extraordinary Event
b. the extent of that Party’s inability to perform under this SoW
c. the likely duration of that non-performance, and
d. what steps are being taken to minimise the impact of the Extraordinary Event on the delivery of Services.
16.1 Any change to this SoW is called a Variation. A Variation must be agreed by both Parties and recorded:
a. in writing and signed by both Parties, or
b. through an exchange of emails where the authors have delegated authority to approve the Variation.
16.2 This SoW, including any Variation, records everything agreed between the Parties relating to the Services. It replaces any previous communications, negotiations, arrangements or agreements that the Parties had with each other relating to the Services before this SoW was signed, whether they were verbal or in writing.
16.3 If a Party breaches this SoW and the other Party does not immediately enforce its rights resulting from the breach that:
a. 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
b. does not prevent the other Party from exercising its rights resulting from the breach at a later time.
16.4 This SoW 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.
16.5 LPS may disclose the existence of this SoW but must obtain the Client’s prior written approval before making reference to the Client or this SoW in its publications, public statements, promotional material or promotional activities about this SoW.
16.6 Each Party undertakes not to post on websites or social networking sites and not to publicly display objectionable or derogatory comments about the Services, this SoW, each other or any of its Personnel and to ensure that its Personnel do not do so.
16.7 The date of execution is date this SoW is signed. This SoW is properly signed if each Party signs the same copy, or separate identical copies, of Page 1. If this SoW is signed on two separate dates or separate copies are signed, the date of execution is the later of the two dates. Where separate copies are signed the signed copy can be the original document, or a faxed or emailed copy.
16.8 During the term of this SoW and for a period of 6 months after the End Date neither Party shall, 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.
16.9 The clauses that by their nature should remain in force on expiry or termination of this SoW do so, including clauses 5 (Information management), 8 (Insurance), 10 (Resolving disputes), 11 (Ending this SoW), 12 (Intellectual Property Rights),
13 (Confidential Information), 16 (General) and 17 (Definitions).
16.10 If there is any conflict or difference between the documents forming this SoW (as stated on Page 1) then the order of precedence is:
a. a Variation agreed between the Parties under clause 16.1
b. Schedule 1
c. any Attachment to Schedule 1
d. Schedule 2.
17.1 When used in this SoW the following terms have the meaning beside them:
Attachment Any supplementary document named in Schedule 1 as an Attachment to this SoW.
Approved Personnel A person who is engaged by LPS to deliver the Services and is named in the SoW. LPS must use this person in the delivery of the Services and cannot change them without first obtaining the Client’s written approval.
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 and is named as the Client on page 1 of this SoW for the purposes of this SoW.
Charges The total amount payable by the Client to LPS as stated in The SoW. LPS’s Charges include Fees and any Expenses and Daily Allowances stated in the SoW. Charges are payable on successful delivery of the Services provided a valid tax invoice has been submitted.
Confidential Information Information that:
a. is by its nature confidential
b. is marked by either Party as ‘confidential’, ‘in confidence’, ‘restricted’ or ‘commercial in confidence’
c. is provided by either Party or a third party ‘in confidence’
d. either Party knows or ought to know is confidential, or
e. 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 SoW. It means that its independence, objectivity or impartiality can be called into question. A Conflict of Interest may be:
a. actual: where the conflict currently exists
b. potential: where the conflict is about to happen or could happen, or
c. perceived: where other people may reasonably think that a person is compromised.
SoW The legal agreement between The Client andLPS.
SoW Manager The person named in Schedule 1 as the SoW Manager. Their responsibilities are listed in clause 4.1
Daily Rate If LPS’s fee rate is expressed as a Daily 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 the Services as stated in Schedule 1. 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.
End Date The earlier of the date this SoW is due to end as stated in Schedule 1, the date of termination as set out in a Notice of termination or any other date agreed between the Parties as the date the SoW is to end.
Expenses Any actual and reasonable out-of-pocket costs incurred by LPS in the delivery of the Services and agreed to in Schedule 1.
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:
a. acts of God, lightning strikes, earthquakes, tsunamis, volcanic eruptions, floods, storms, explosions, fires, pandemics and any natural disaster
b. acts of war (whether declared or not), invasion, actions of foreign enemies, military mobilisation, requisition or embargo
c. acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, rebellion, insurrection, revolution or military usurped power or civil war, or
d. contamination by radioactivity from nuclear substances or germ warfare or any other such hazardous properties.
Fees The amount payable to LPS for the time spent in delivery of the Services calculated on the basis stated in Schedule 1, 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 LPS’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.
Milestone A phase or stage in the delivery of Services resulting in a measurable output. Payment of Fees is usually due on the satisfactory delivery of a Milestone.
New Intellectual Property Rights Intellectual Property Rights developed after the date of this SoW and incorporated into the Deliverables.
Notice A formal or legal communication from one Party to the other that meets the requirements of clause 14.
Party The Client and LPS are each a Party to this SoW, and together are the Parties.
Personnel All individuals engaged by either Party in relation to this SoW or the delivery of Services. Examples include: the owner of the business, its directors, employees, Subcontractors, agents, external consultants, specialists, technical support and co-opted or seconded staff. It includes Approved Personnel.
Pre-existing Intellectual Property Rights Intellectual Property Rights developed before the date of this SoW. It does not cover later modifications, adaptations or additions.
Records All information and data necessary for the management of this SoW and the delivery of Services. 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, including those stated in Schedule 1, that LPS must perform and deliver under this SoW.
Schedule An attachment to this SoW with the title ‘Schedule’.
Start Date The date when this SoW starts as stated in Schedule 1.
Subcontractor A person, business, company or organisation contracted by LPS to deliver or perform part of LPS’s obligations under this SoW.
Supplier The person, business, company or organisation named as LPS on page 1. It includes its Personnel, successors, and permitted assignees.
Variation A change to any aspect of this SoW that complies with clause 16.1.