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1.1 The SoW starts on the Start Date. Services must not be delivered before the Start Date.
1.2 The SoW ends on the End Date unless terminated earlier.
Both Parties’ obligations
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 the 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.
Buyer’s obligations
2.2 The Client must:
a. provide Expert360 with any information it has reasonably requested to enable the delivery of the Services;
b. make decisions and give approvals reasonably required by Expert360 to enable delivery of the Services. All decisions and approvals must be given within reasonable timeframes;
c. pay Expert360 the Charges for the Services as long as Expert360 has delivered the Services and invoiced the Client, all in accordance with the SoW, and
d. prior to commencement of each Statement of Work, the Client will on-board Expert360 staff, which will include; H&S induction and compliance with Client policies.
Expert360 obligations
2.3 Expert360 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 Expert360 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 Expert360 must:
a. ensure that its Personnel have the necessary skills, experience, training and resources to successfully deliver the Services
2.5 If Expert360 is at The Client’s premises, Expert360 must observe The Client’s policies and procedures, including those relating to health and safety, and security requirements. The Client must tell Expert360 what the relevant policies and procedures are, and either give Expert360 a copy of them or provide an internet link.
2.6 If the nature of the Services requires it, Expert360 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.
Charges & invoices
3.1 The Charges are the total maximum amount payable by the Client to Expert360 for delivery of the Services. Charges include Fees and, where agreed, Expenses and Daily Allowances.
Payment
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 by the 20th calendar day of the month following the month it is received. The Client’s obligation to pay is subject to clauses 3.3 and 11.13.
3.3 If the Client disputes a tax invoice or any part of a tax invoice, the Client must notify Expert360 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.
3.4 Unless expressly stated otherwise, any and all Charges do not include GST. If a supply under the SOW is a taxable supply, as the recipient of the taxable supply the Client must pay the applicable GST amount to Expert360 where stated in a valid tax invoice.
3.5 The Client acknowledges and agrees that the timing for payments under these terms is of the essence. Without limitation, where undisputed or approved tax invoices issued by Expert360 are not paid in accordance with these terms, Expert360 may charge late payment fees at 1.5% above the BNZ Business overdraft base rate, calculated daily, and any costs of recovery.
SoW Manager
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 the SoW, and
c. acting as a first point of contact for any issues that arise.
Changing the SoW Manager
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.
Information and Records
5.1 Expert360 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 Expert360 must give information to the Client relating to the Services that the Client reasonably requests. All information provided by Expert360 must be in a format that is usable by the Client and delivered within a reasonable time of the request.
5.3 Expert360 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 Expert360 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 Expert360 must make sure that Records provided by the Client or created for the Client, are securely managed and securely destroyed on their disposal.
Independent contractor
6.1 Nothing in these terms or the SoW constitutes a legal relationship between the Parties of partnership, joint venture, agency, or employment. Expert360 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 Expert360’s business or the engagement of its Personnel.
Neither Party can represent the other
6.2 Neither Party has authority to bind or represent the other Party in any way or for any purpose.
Permission to transfer rights or obligations
6.3 Expert360 may transfer any of its rights or obligations under the SoW only if it has the Client’s prior written approval. The Client will not unreasonably withhold its approval.
Rules about subcontracting
7.1 Expert360 must not subcontract any part of the Services without the Client’s prior written approval.
Expert360’s responsibilities
7.2 Expert360 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 Expert360 must ensure that:
a. each Subcontractor is fully aware of Expert360’s obligations under the SoW, and
b. any subcontract it enters into is on terms that are consistent with the SoW.
7.4 Expert360 continues to be responsible for delivering the Services under the SoW even if aspects of the Services are subcontracted.
Expert360 will maintain the following insurances and will provide to the Client on request a certificate of currency from a reputable insurance provider for: (a) public liability insurance of A$20 million per event; (b) professional indemnity insurance of not less than A$10 million per event; and such other insurances as are required by law.
Avoiding Conflicts of Interest
9.1 Expert360 warrants that as at the Start Date, it has no Conflict of Interest in providing the Services or entering into the SoW.
9.2 Expert360 must do its best to avoid situations that may lead to a Conflict of Interest arising.
Obligation to tell The Client
9.3 Expert360 must tell the Client immediately, and in writing, if it becomes aware of any Conflict of Interest arising in relation to the Services or the 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.
Steps to resolving disputes
10.1 The Parties agree to use their best endeavours to resolve any dispute or difference that may arise under the 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.
Obligations during a dispute
10.3 If there is a dispute, each Party will continue to perform its obligations under the SoW as far as practical having regard to the nature of the dispute.
Taking court action
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.
Termination by Expert360
11.1 At any time during the term of the SoW Expert360 may notify the Client that it wishes to terminate this Contact by giving at least 20 Business Days’ Notice. The Client will, within 20 Business Days following receipt of Expert360’s Notice, notify Expert360 whether it accepts Expert360’s Notice of termination. If the Client:
a. accepts, 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 until the End Date.
11.2 Nothing in clause 11.1 shall be construed as limiting Expert360’s other termination rights in this clause 11.
Termination by The Client
11.3 The Client may terminate the SoW at any time by giving 20 Business Days’ Notice to Expert360.
11.4 The Client may terminate the SoW immediately, by giving Notice in writing, if Expert360:
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 the SoW and the breach cannot be remedied
f. repeatedly fails to perform or comply with its obligations under the 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 to the Client, or
i. provides information to the Client that is misleading or inaccurate in any material respect.
Termination by a Party if a breach has not been remedied
11.5 If a Party fails to meet the requirements of the SoW (defaulting Party), including but not limited to a failure by the Client to pay a tax invoice when due, and the other Party (non-defaulting Party) reasonably believes that the failure can be remedied, the non-defaulting Party must give a notice in writing (default Notice) to the defaulting Party.
11.6 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.
11.7 The period allowed to remedy the failure must be reasonable given the nature of the failure.
11.8 If the defaulting Party does not remedy the failure as required by the default Notice, the non-defaulting Party may terminate the SoW immediately by giving a further written notice.
Obligations on termination or expiry of the SoW
11.9 On giving or receiving a Notice of termination, each party 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 the SoW.
11.10 On termination or expiry of the SoW, Expert360 must, if requested by the Client, immediately return or securely destroy all Confidential Information and other material or property belonging to the Client.
Consequences of termination or expiry of the SoW
11.11 The termination or expiry of the 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 the SoW that arose prior to the time of termination or End Date.
11.12 If the SoW is terminated, the Client will only be liable to pay Charges that were due for Services delivered before the effective date of termination.
Handing over the Services on termination or expiry of the SoW
11.13 Expert360 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.
11.14 If the Parties agree, Expert360 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 the SoW.
Ownership of Intellectual Property Rights
12.1 No change in ownership of Pre-existing Intellectual Property Rights is effected by these terms.
12.2 New Intellectual Property Rights in the Deliverables become the property of the Client when they are created.
12.3 Expert360 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 Nothing in these terms grants the Client any intellectual property rights in or associated with the Expert360 platform.
Expert360 warranties
12.5 Expert360 warrants that it is legally entitled to grant the licence under clause 12.3 to the Intellectual Property Rights in the Deliverables.
12.6 Expert360 warrants that Pre-existing and New Intellectual Property Rights provided by Expert360 and incorporated in the Services and Deliverables do not infringe the Intellectual Property Rights of any third party.
13.1 To the maximum extent permitted by applicable law, the aggregate liability of Expert360 arising under these terms (whether in contract, tort (including negligence), statute, equity or otherwise) is limited to the Charges paid or payable by the Client to Expert360 under the applicable SoW, except to the extent caused by Expert360’s fraud, negligence or deliberately wrongful act or omission. The limitation under this clause 13.1 shall not apply to the warranties under clauses 12.5 and 12.6.
13.2 Neither party is liable for any indirect, special or consequential losses or damages, loss of income, profits, goodwill, data, contracts, use of money or business interruption of any type suffered in connection with the SoW, whether arising under contract, tort (including negligence), statute, equity or otherwise.
Protection of Confidential Information
14.1 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.
Obligation to inform staff
14.2 Each Party will ensure that its Personnel:
a. are aware of the confidentiality obligations in these terms, and
b. do not use or disclose any of the other Party’s Confidential Information except as allowed by these terms.
Delivery of Notices
15.1 All Notices to a Party must be delivered by hand or sent by post, courier or email to that Party’s address for Notices stated in the SoW.
15.2 Notices must be signed or in the case of email sent by the appropriate manager or person having authority to do so.
Receipt of Notices
15.3 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; 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 provided that it is not returned undelivered or as an error.
15.4 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.
No fault if failure due to an Extraordinary Event
16.1 Neither Party will be liable to the other for any failure to perform its obligations under the SoW where the failure is due to an Extraordinary Event.
Obligations of the affected Party
16.2 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 the 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.
Changes to the SoW
17.1 Any change to the 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.
This is the entire SoW
17.2 These terms and the 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 the SoW was signed, whether they were verbal or in writing.
Waiver
17.3 If a Party breaches these terms 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.
New Zealand law, currency and time
17.4 The 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.
Publication of information about the SoW
17.5 Expert360 may disclose the existence of the SoW but must obtain the Client’s approval before making reference to the Client or the SoW in its publications, public statements, promotional material or promotional activities about the SoW.
17.6 Each Party undertakes not to post on websites or social networking sites and not to publicly display objectionable or derogatory comments about the Services, the SoW, each other or any of its Personnel and to ensure that its Personnel do not do so.
No poaching
17.7 Subject to clause 17.8, if the Client engages any Expert under any form of contract of employment, contract for services, independent contractor agreement or any other contract or arrangement by which the Expert is to provide services to the Client or its related companies or associates (whether individually or through a third party intermediary) the Client must pay Expert360 an Introduction Fee.
17.8 Clause 17.7 applies while an Expert is working under the SoW and for 12 months from the later of: (a) the time the Client first identifies an Expert through the Expert360 platform or services; or (b) the End Date.
17.9 The Introduction Fee is:
a. 25% (excl GST) of the total projected first year remuneration package for the Expert (including base salary, superannuation, guaranteed bonus and any other benefits provided to the Expert);
b. if the Expert is retained under an independent contract or services agreement, 25% (excl GST) of the total projected first year of services fees and benefits payable under that agreement; or
c. such other rate or amount as agreed in writing between Expert360 and the Client.
17.10 Upon the Expert accepting an offer from the Client, the Client must immediately provide all information required by Expert360 to calculate the Introduction Fee and a tax invoice will be issued to the Client. The Introduction Fee is payable within 14 days of receipt of the invoice.
17.11 During the term of the SoW and for a period of six (6) months thereafter, the Client must not solicit or recruit any employee of Expert360 to directly or indirectly work for or with the Client or otherwise encourage an employee of Expert360 to terminate his or her employment with Expert360. This clause does not apply where the employee independently and of their own accord, without solicitation, inducement or encouragement by the Client or on the Client’s behalf, responds to a public advertisement for the relevant position.
Clauses that remain in force
17.12 The clauses that by their nature should remain in force on expiry or termination of the SoW do so, including clauses 5 (Information management), 8 (Insurance), 10 (Resolving disputes), 11 (Ending the SoW), 12 (Intellectual Property Rights), 13 (Liability), 14 (Confidential Information), 17 (General) and 18 (Definitions).
Precedence
17.13 If there is any conflict or difference between the documents forming the SoW then the order of precedence is:
a. a Variation agreed between the Parties under clause 17.1
b. the SoW
c. any Attachment to the SoW
d. these terms.
When used in these terms and the SoW each of the following expressions has, except where the context otherwise requires, the meaning given to it below:
Attachment means any supplementary document included as an Attachment to the SoW.
Business Day means 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 means the Client is the purchaser of the Services and is named as the Client on page 1 of the SoW.
Charges means the total amount payable by the Client to Expert360 as stated in the SoW. Expert360’s Charges include Fees and any Expenses and Daily Allowances stated in the SoW.
Confidential Information means 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 means 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 the 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.
Daily Rate means, if Expert360’s fee rate is expressed as a Daily Rate, the fee payable for each day spent in the delivery of Services. A day is a minimum of 8 working hours.
Deliverables means a tangible output resulting directly from the delivery of the Services as stated in the SoW. 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 means the earlier of the date the SoW is due to end as stated in the SoW, 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 means any actual and reasonable out-of-pocket costs incurred by Expert360 in the delivery of the Services and agreed between the parties.
Expert means a person who is engaged by Expert360 to deliver the Services and is named in the SoW.
Expert360 must use this person in the delivery of the Services and cannot change them without first obtaining the Client’s written approval.
Expert360 means the Expert360 group company entering into the SoW, being LPS New Zealand Ltd t/as Expert360.
Extraordinary Event means 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 of Extraordinary Events 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 means the amount payable to Expert360 for the time spent in delivery of the Services calculated on the basis stated in the SoW, excluding any Expenses and Daily Allowances.
GST means the goods and services tax payable in accordance with the New Zealand Goods and Services Tax Act 1985.
Hourly Fee Rate means if Expert360’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 means all Intellectual Property Rights and interests, including copyright, trademarks, designs, patents and other proprietary rights, recognised or protected by law.
Milestone means 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 means intellectual Property Rights developed after the date of the SoW and incorporated into the Deliverables.
Notice means a formal or legal communication from one Party to the other that meets the requirements of clause 15.
Party means each of the Client and Expert360, and together are the Parties.
Personnel means all individuals engaged by either Party in relation to the 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 Experts.
Pre-existing Intellectual Property Rights means intellectual Property Rights developed before the date of the SoW.
Records means all information and data necessary for the management of the 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 means all work, tasks and Deliverables, including those stated in the SoW, that Expert360 must perform and deliver under the SoW.
SoW means the Statement of Work agreement between the Client and Expert360.
SoW Manager means the person named in the SoW as the SoW Manager with the responsibilities listed in clause 4.1
Start Date means the date when the SoW starts as stated in the SoW.
Subcontractor means a person, business, company or organisation contracted by Expert360 to deliver or perform part of Expert360’s obligations under the SoW.
Variation means a change to any aspect of the SoW that complies with clause 17.1.
