COMMERCIAL
(A)
the cause of the Delay
within a reasonable time after the
and its expected
issue of this Consultancy
duration;
Services Order;
(B)
the effect of the Delay on
(iii)
ensure that all Documentation,
its ability to perform its
information and advice (including
obligations under this
Documentation, information and
Consultancy Services
advice provided prior to the issue
Order (including any
of this Consultancy Services
future Milestones);
Order) provided to the
Participating Agency or
(C)
what extension, if any, to
published on the Provider
the relevant Milestone is
Database is Fit for Purpose so
being sought; and
that, without limitation, it contains
(D)
what steps, if any, the
sufficient content and detail to
Participating Agency
enable the Participating Agency
may take to mitigate the
to make use of it for the purpose
effect of the Delay; and
for which it was requested;
(ii)
take all reasonable steps
(iv)
act in the best interests of the
necessary (including by the
Participating Agency in the
allocation of additional
provision of Services to the
resources) to eliminate or avoid
Participating Agency; and
the Delay and, in all cases,
(v)
provide Services to the
mitigate its effects.
reasonable satisfaction of the
(b)
If the Provider and Participating Agency
Participating Agency (as reported
agree that the Delay is acceptable or
to the CoE).
wish to amend the Milestone:
3.
Estimates and Quotes
(i)
the Provider will complete and
3.1
Estimates and Quotes
submit Part C of this Consultancy
Services Order to the
(a)
The Provider must provide an Estimate
Participating Agency; and
or Quote for all Services to be provided
under this Consultancy Services Order,
(ii)
upon receipt of the completed
unless the total Fees in respect of the
Part C of this Consultancy
Services under this Consultancy
Services Order, the Participating
Services Order are likely to be less than
Agency must promptly advise the
$10,000 (exclusive of GST) or such other
Provider in writing if the
amount as determined by the CoE and
completed Part C is acceptable.
notified to the Provider.
(c)
If the Provider does not achieve the
(b)
Despite clause 3.1(a), if, during the
Milestone (as amended from time to
course of providing the Services, the
time) and the Participating Agency’s acts
Provider becomes aware that the total
or omissions, or those of its Personnel or
Fees (excluding GST) are likely to
third parties acting on its behalf, have not
exceed the amount referred to in clause
caused the Provider to fail to achieve the
3.1(a), the Provider must provide an
Milestone, the Participating Agency may,
Estimate in accordance with clauses
without prejudice to any other right or
3.1(c) to (e).
remedy, suspend payment of any
Charges relating to this Consultancy
(c)
All Estimates and Quotes will be
Services Order until the Provider
provided at no cost to the Participating
remedies the relevant failure.
Agency.
2.5
Service standards
(d)
All Estimates and Quotes must specify
the estimated timeframe to perform the
(a)
The Provider must provide the Services
Services requested in this Consultancy
in relation to the sub-categories for which
Services Order and the Rates of
the Provider has been appointed as a
Personnel providing the Services and
Tier 1 and Tier 2 Provider to a standard
include any Expenses likely to be
that reaches or exceeds the Service
incurred in providing the Services.
Levels specified in Schedule 3
(Performance Measurement).
(e)
All Quotes and Estimates must be
provided to the Participating Agency in
(b)
In addition, the Provider must:
writing and must be included in this
(i)
provide the Services diligently,
Consultancy Services Order.
efficiently, effectively and in
(f)
To avoid doubt and without limiting
accordance with Industry Best
clause 4.5(c) of the Services Agreement,
Practice;
if any Quote or Estimate is not
(ii)
ensure that the Services to be
acceptable to the Participating Agency,
performed under this
the Participating Agency and Provider
Consultancy Services Order are
may seek to negotiate a more favourable
provided on or before the date
Quote or Estimate, including a decrease
specified for performance (if any)
in the Rates on which the Quote or
in this Consultancy Services
Estimate was based.
Order and, if no time is specified,
3.2
If Charges exceed the Estimate
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(a)
If during the course of providing the
(b)
If the Provider has an actual, potential or
Services under this Consultancy
perceived Conflict of Interest, the
Services Order, the Provider becomes
Provider must immediately notify the
aware that the total Charges (excluding
Participating Agency and must not begin
GST) are likely to exceed the Estimate,
performing the Services without the prior
the Provider must give written notice to
written approval of the Participating
the Participating Agency using Part D of
Agency.
this Consultancy Services Order as soon
as the Provider becomes so aware, but
(c)
The Provider must take all reasonable
no later than the time the costs accrued
steps to ensure that:
or incurred reach 80% of the Estimate.
(i)
a situation does not arise that
(b)
The notice under clause 3.2(a) must
might result in an actual,
specify a revised Estimate for the
potential or perceived Conflict of
Services and include the reason the total
Interest; and
Charges will exceed the original
(ii)
any Personnel or Subcontractors
Estimate.
of the Provider do not engage in
(c)
The Participating Agency has sole
any activity or obtain interests
discretion whether to approve a revised
that might result in the Provider
Estimate and must act reasonably when
or such Personnel or
deciding whether to approve a revised
Subcontractors having an actual,
Estimate.
potential or perceived Conflict of
Interest,
(d)
When a revised Estimate is approved,
the Participating Agency must provide
that cannot be managed to the
written notice of the same to the
satisfaction of the Participating Agency.
Provider.
(d)
If, after commencing Services under this
(e)
If a Provider has provided an Estimate to
Consultancy Services Order, the
the Participating Agency for Services, the
Provider becomes aware of any matter,
Participating Agency is not liable to pay
circumstance, interest or activity that
the Provider any amount exceeding the
may give rise to any actual, potential or
Estimate unless the Participating Agency
perceived Conflict of Interest, the
has approved a revised Estimate.
Provider must immediately notify the
Participating Agency of all relevant
3.3
If Charges exceed the Quote
details and must immediately cease work
on the Services until such time as the
(a)
The Provider acknowledges that neither
Participating Agency provides written
the CoE nor the Participating Agency are
notice confirming the Provider may
obliged to pay any Charges to the
continue to perform the Services or
Provider in relation to Services
terminates the engagement of the
performed under this Consultancy
Provider in respect to the Services to be
Services Order if those Charges exceed
performed under this Consultancy
any Quote provided in relation to this
Services Order in accordance with
Consultancy Services Order, unless the
clause 4.1(e).
Participating Agency has given its prior
written consent in accordance with
(e)
If the Participating Agency considers that
clause 3.3(b).
the Provider has an actual Conflict of
Interest of sufficient gravity that the
(b)
If the Participating Agency agrees to
Provider can no longer perform Services
allow the Provider to increase the
for it, the Participating Agency may, by
Charges:
written notice to the Provider, terminate
(i)
the Provider will complete and
this Consultancy Services Order with
submit Part D of this Consultancy
immediate effect on the date of
Services Order to the
termination specified in that notice.
Participating Agency; and
(f)
Any approval or notice given by the
(ii)
upon receipt of the completed
Participating Agency pursuant to clause
Part D of this Consultancy
4.1(b) or 4.1(d) may require the Provider
Services Order, the Participating
to take steps reasonably required by the
Agency must promptly advise the
Participating Agency to manage the
Provider (in writing) if the
Conflict of Interest, and the Provider
completed Part D is acceptable.
must provide written notice confirming its
acceptance of those steps before it may
4.
Conflicts of interest
commence or continue to provide the
Services under this Consultancy
4.1
Conflicts of interest
Services Order.
(a)
The Provider must, upon receipt of this
5.
Responsibilities
Consultancy Services Order, make
diligent inquiry whether it has any actual,
5.1
Provider responsibilities
potential or perceived Conflicts of
Interest if it were to provide the Services
In addition to its other obligations under this
specified in this Consultancy Services
Consultancy Services Order, the Provider will:
Order and, if no such Conflict of Interest
(a)
respond promptly, accurately and
exists, the Provider must provide
adequately to any requests for
confirmation to that effect to the
information made by the Participating
Participating Agency.
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Agency in relation to the Services,
perform the Services under this
including requests for advice;
Consultancy Services Order;
(b)
in performing Services for the
(d)
to make timely decisions where
Participating Agency under this
approvals or consents are reasonably
Consultancy Services Order comply with
sought by the Provider in performing the
all privacy and other policies and
Services under this Consultancy
guidelines issued by the Participating
Services Order;
Agency and notified or made available to
the Provider;
(e)
to pay the Charges; and
(c)
obtain, maintain and comply with any
(f)
to use its best efforts to resolve any
governmental, regulatory or other
dispute directly with the Provider before
approvals, permissions, consents,
involving the CoE in accordance with
licences, and requirements necessary to
clause 13.
provide the Services and perform its
6.
Resourcing
obligations under this Consultancy
Services Order;
6.1
General requirements
(d)
comply with all Laws at all times during
The Provider will provide and maintain sufficient
the Term in so far as they relate to the
resources (including human resources,
provision of the Services, including the
equipment, telecommunications connectivity,
Privacy Act 1993 and all applicable
premises and other facilities) to enable it to
consumer laws;
perform its obligations on time and otherwise in
accordance with this Consultancy Services
(e)
ensure that it and its Personnel providing
Order.
the Services do not access the
Participating Agency’s information or
6.2
Provider’s Nominated Personnel
systems except to the extent necessary
to provide the Services and for no other
(a)
The Participating Agency may, in this
purpose;
Consultancy Services Order, nominate
specific Personnel (
Nominated
(f)
as soon as is practicable, notify the
Personnel) to be the primary providers
Participating Agency of any problems or
or to supervise the delivery of the
issues that arise in relation to the
Services.
performance of its obligations under this
Consultancy Services Order, including
(b)
If any Nominated Personnel nominated
any problems or issues that will, or are
in this Consultancy Services Order are
likely to, affect the provision or quality of
not available to provide or supervise the
the Services or the ability of the Provider
Services requested, the Provider must
to perform its obligations under this
immediately notify the Participating
Consultancy Services Order;
Agency and provide details of other
Personnel (if any) with the necessary
(g)
without limiting any other provision of this
skills and experience to provide or
Consultancy Services Order, use all
supervise the Services requested
reasonable endeavours to avoid
pursuant to this Consultancy Services
damaging or adversely affecting any
Order.
Participating Agency’s reputation;
(c)
Notice given under clause 6.2(b) must
(h)
in relation to the sub-categories for which
specify the period for which the
the Provider has been appointed as a
Nominated Personnel will continue to be
Tier 1 and Tier 2 Provider, conduct the
unavailable.
Agency Satisfaction Survey by asking
the Participating Agency the questions
(d)
Upon receipt of notice under clause
recorded in Annexure A of Schedule 5
6.2(b), the Participating Agency must
(Governance) to the Services Agreement
notify the Provider whether the
within 5 Business Days of the Services in
replacement Personnel are acceptable.
this Consultancy Services Order being
(e)
The Participating Agency is under no
completed.
obligation to accept any replacement
5.2
Participating Agencies’ responsibilities
Personnel and, if it does not approve the
replacement Personnel, the Provider
The Participating Agency has the following
may not commence or continue providing
responsibilities in relation to the Services:
the Services.
(a)
to manage its operational relationship
6.3
Personnel
with the Provider, including in relation to
the fulfilment of this Consultancy
(a)
The Provider will ensure that all of its
Services Order;
Personnel who are engaged in the
performance of the Provider’s obligations
(b)
to notify the Provider of all relevant
under this Consultancy Services Order:
policies, guidelines and procedures of
the Participating Agency that the
(i)
have the requisite skills,
Provider must comply with when
expertise, qualifications and
performing the Services under this
experience;
Consultancy Services Order;
(ii)
have, before performing any
(c)
to provide adequate instructions and
such obligations, obtained all
information to the Provider to allow it to
security clearances and passed
all probity checks required by, or
15
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necessary to provide the
the Participating Agency may, by
Services to, the Participating
notice to the Provider, require the
Agency;
Provider to remove that
Subcontractor,
(iii)
comply with all health, safety,
security and other policies, codes
and the Provider will ensure the
of conduct, procedures and
immediate removal of that Subcontractor.
reasonable directions as may be
reasonably required by the
7.
Changes
Participating Agency from time to
7.1
Change procedure
time; and
The Participating Agency may agree any
(iv)
will carry out their respective
variations to this Consultancy Services Order
duties with due care, skill and
with the Provider using Part C of the Consultancy
diligence.
Services Order.
(b)
The Participating Agency will notify the
8.
Price and payment
Provider of any security clearances and
probity checks required by, or necessary
8.1
Calculation of Charges
to provide the Services to, the
Participating Agency.
The Charges will be calculated in accordance
with the terms of Schedule 2 (Pricing).
6.4
Subcontracting
8.2
Participating Agency to pay for Services
(a)
The Provider will not subcontract the
performance of all or part of the Services
(a)
The Participating Agency will pay the
or any of its other obligations under this
Provider the Charges applicable to any
Consultancy Services Order, except with
Services procured by the Participating
the prior written consent of the
Agency on the terms of this clause 8.
Participating Agency.
(b)
The Charges and Administration Fee
(b)
The Provider is solely responsible for the
comprise the total amount payable by the
selection of each Subcontractor and
Participating Agency for the Services.
must ensure that each Subcontractor is
8.3
Invoicing and payment
creditworthy, qualified and has the
relevant experience to perform the work
Except as otherwise provided in Schedule 2
it is required to carry out for the Provider.
(Pricing) or as agreed with the Participating
Agency in this Consultancy Services Order, the
(c)
To the extent permitted by Law, the
Provider will invoice the Participating Agency (or,
Provider is and remains fully responsible
if the Participating Agency has instructed the
for any act or omission of any
Provider in writing, the third party agent) for the
Subcontractor.
Charges and the Participating Agency will pay
(d)
The Provider must ensure that each
those Charges, in accordance with the following
Subcontract contains obligations on the
terms:
Subcontractor that are consistent with
(a)
the Provider will render one itemised
the relevant terms of this Consultancy
invoice to the Participating Agency at the
Services Order, including in relation to
end of each month during the Term for
clauses 5.1 (Provider responsibilities),
all Services performed during that month
6.3(a) (Personnel), 10 (Confidentiality),
specifying (as applicable):
11 (Intellectual Property) and 14
(Termination) and Schedule 3
(i)
the nature and amount of the
(Performance Measurement), together
Fees or other applicable fees
with clause 15 (Audit) of the Services
and fee structures;
Agreement.
(ii)
the Personnel and their
(e)
If, in the Participating Agency’s
applicable Rate;
reasonable opinion, a Subcontractor is:
(iii)
the hours billed (by Personnel
(i)
materially not performing in
and in the aggregate);
accordance with the terms of this
Consultancy Services Order, the
(iv)
the nature and amount of any
Participating Agency may, by
Expenses (including any third
notice to the Provider, require the
party charges to be passed on to
Provider to procure that the
the Participating Agency);
Subcontractor performs the
(v)
if applicable, the amount
relevant obligations within 10
representing the Administration
Business Days, failing which the
Fee;
Participating Agency may, by
notice to the Provider, require the
(vi)
how much of the Estimate or
Provider to remove that
Quote has been used;
Subcontractor; or
(vii)
a brief description of the Services
(ii)
a material threat to the health,
provided during that month; and
safety or security of the
Personnel or property of the
(viii)
any other matters the
Participating Agency, or has
Participating Agency may
breached security or
reasonably request;
confidentiality requirements of
this Consultancy Services Order,
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COMMERCIAL
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(b)
each correctly rendered invoice will be
Provider agree to treat the Charges as
payable on or before the 20th day of the
being in dispute and clause 14 will apply.
month following the month in which the
invoice was received;
9.
Warranties
(c)
the Participating Agency will have no
9.1
General warranties
obligation to pay any Charges which are
Each party represents, warrants and undertakes
invoiced more than 90 days after the
that:
date that such amount was required to
be invoiced pursuant to this clause 8.3;
(a)
it has full power, capacity and authority
and
to execute, deliver and perform its
obligations under this Consultancy
(d)
the Provider may only invoice the
Services Order;
Participating Agency for any Expenses at
the cost actually incurred by the
(b)
it has, and will continue to have, all the
Provider.
necessary consents, permissions,
licences and rights to enter into and
8.4
Invoice disputes
perform its obligations under this
If the Participating Agency or the Provider
Consultancy Services Order; and
disputes an invoice:
(c)
this Consultancy Services Order
(a)
it may withhold the disputed sum and, if
constitutes its legal, valid and binding
applicable, associated Administration
obligations and is enforceable in
Fee until the dispute is resolved;
accordance with its terms.
(b)
the dispute will be resolved in
9.2
Provider’s warranties
accordance with clause 13; and
The Provider represents, warrants and
(c)
it will pay the undisputed portion in
undertakes that:
accordance with clause 8.3.
(a)
it will perform its obligations under this
The Provider will not be excused from performing
Consultancy Services Order with due
its obligations under this Consultancy Services
care, skill, promptness and diligence at
Order while an invoice is disputed by the
all times;
Participating Agency.
(b)
it has, and will have throughout the
8.5
Taxes
Term, sufficient Personnel to supply the
Services and to perform its other
(a)
Except for any GST payable by the
obligations under this Consultancy
Participating Agency, any present or
Services Order;
future tax, levy, impost, duty, charge,
assessment or fee of any nature
(c)
it, and each of its Personnel engaged in
(including applicable interest and
the performance of the Services, has,
penalties) payable in connection with this
and will have throughout the Term, the
Consultancy Services Order under any
necessary expertise and all necessary
Law is to be paid by the Provider and not
governmental, regulatory or other
passed on to the Participating Agency
approvals, permissions, consents,
unless otherwise expressly agreed in
licences, qualifications, accreditations
writing by the Participating Agency.
and requirements to provide the Services
and perform its other obligations under
(b)
The Participating Agency may deduct
this Consultancy Services Order;
from any payment to be made to the
Provider any withholding taxes or other
(d)
it will comply with the requirements of all
deductions that it is required by Law to
Laws as they relate to the provision of
make.
Services by the Provider;
8.6
Administration Fee
(e)
the possession or use of any item of
Intellectual Property supplied or licensed
In relation to the sub-categories for which the
by it, or the use of any item of Intellectual
Provider has been appointed as a Tier 1 or Tier 2
Property by it to perform its obligations
Provider, the Provider will ensure that each
under this Consultancy Services Order,
invoice issued to the Participating Agency for the
will not infringe the rights of any third
Charges includes, in addition to the Charges, a
party;
separate amount equal to 1% of the Fees
(excluding GST) (the
Administration Fee).
(f)
all Documentation (and any other
information or advice supplied by it to the
8.7
Suspension of payment
Participating Agency) and any
information and data reported to the CoE
(a)
Without prejudice to any other right or
will be accurate, complete and (as
remedy that may be available to the
applicable) Fit for Purpose;
Participating Agency, the Participating
Agency may suspend payment of all or
(g)
there are no existing agreements,
any part of the Charges if the CoE has
undertakings or arrangements which
notified the Provider that the Provider is
prevent it from entering into this
in Material Breach, until that Material
Consultancy Services Order, or which
Breach is remedied.
would impede the performance of its
obligations under this Consultancy
(b)
If the Material Breach is not capable of
Services Order, or that it would breach
remedy the Participating Agency and the
by entering into this Consultancy
Services Order;
17
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(h)
it is not (and nor is any of its Personnel)
(i)
if that information was known, or
a party to any litigation, proceedings or
becomes known, to the public
disputes which could adversely affect its
through no act or default of the
ability to perform its obligations under
recipient;
this Consultancy Services Order; and
(ii)
that the recipient is required by
(i)
it has not offered any inducement in
Law or parliamentary practice
connection with the entering into or
(including parliamentary
negotiation of this Consultancy Services
questions) to disclose, or to a
Order, and will not offer any inducement
Select Committee or to a Minister
in connection with the supply of Services
of the Crown, so long as the
to the Participating Agency.
recipient provides notice of the
required disclosure promptly
9.3
Continuous application
upon receipt of notice of the
The warranties, representations and
required disclosure (if it is
undertakings set out in clause 9.2 will be deemed
permitted to do so by Law);
to be given by the Provider continuously
(iii)
that was lawfully known to the
throughout the Term.
recipient prior to the date it was
9.4
Notification
received;
Each party will promptly notify the other if at any
(iv)
that becomes available to the
time during the Term it breaches any of the
recipient from a source other
warranties, representations and undertakings in
than a party to this Consultancy
this clause 9.
Services Order, provided that the
recipient has no reason to
9.5
Other warranties excluded
believe such source is itself
bound by an obligation of
All warranties (statutory, express or implied)
confidence to the person that
which are not expressly referred to in this
disclosed that information or is
Consultancy Services Order are excluded to the
otherwise prohibited under Law
fullest extent permitted by Law.
from disclosing such information;
10.
Confidentiality
(v)
to any Professional Adviser for
the purposes of rendering
10.1
Protection of Confidential Information
professional services to a party
(a)
Subject to clauses 10.1(c) and 10.2, the
in relation to this Consultancy
Provider and the Participating Agency
Services Order;
will treat as confidential and not disclose
(vi)
to the extent that such disclosure
to any third party nor use for its own
is authorised by this Consultancy
benefit any Confidential Information that
Services Order; or
is the Confidential Information of the
other.
(vii)
if such disclosure is approved for
release with the consent of the
(b)
The Provider will:
party from whom the Confidential
(i)
ensure that all Confidential
Information is first received.
Information of the Participating
10.2
Limited disclosure
Agency (and any backup
archives containing such
(a)
The Provider may, subject to clause
Confidential Information) in the
10.2(d), disclose the Confidential
possession or control of the
Information of the Participating Agency to
Provider from time to time is kept
its Subcontractors, Personnel, Related
secure and managed and
Entities and Professional Advisers who
protected and only disclosed or
need to know the same for the sole
otherwise dealt with in
purpose of enabling the Provider to
accordance with this
perform its obligations and exercise its
Consultancy Services Order;
rights under this Consultancy Services
Order.
(ii)
not use any Agency Information
for its own purposes or for any
(b)
The Participating Agency may, subject to
purposes different from those
clause 10.2(d), disclose the Confidential
contemplated by this
Information of the Provider to its third
Consultancy Services Order; and
party suppliers, Personnel and
Professional Advisers and any other
(iii)
advise the CoE in writing if any
Participating Agencies (including the
Confidential Information of the
CoE) who need to know the same in
Participating Agency will be
connection with the Services.
transferred or stored outside
New Zealand before such
(c)
The Provider will not disclose the
information is transferred and will
Participating Agency’s Confidential
confirm that the requirements of
Information to any of its Subcontractors,
this clause 10.1 will be met while
Related Entities or Professional
such Confidential Information is
Advisers, and the Participating Agency
stored outside New Zealand.
will not disclose the Provider’s
Confidential Information to any of its third
(c)
Clause 10.1(a) does not prevent the
party suppliers or Professional Advisers,
disclosure of Confidential Information:
unless the recipient has given a written
18
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confidentiality undertaking to the
(i)
assigns to the Participating
disclosing party in terms substantially
Agency all of its rights, title and
similar to those set out in this clause 10.
interest in and to the
Participating Agency IP from the
(d)
Any undertaking given pursuant to
date it was created or developed;
clause 10.2(c) will be provided to the
and
other party to this Consultancy Services
Order on request.
(ii)
waives all right of lien or similar
rights as may now or later be
11.
Intellectual Property
claimed in the Participating
Agency IP; and
11.1
Intellectual Property owned by Provider
(iii)
waives all of its moral rights
(a)
The Participating Agency acknowledges
under Part 4 of the Copyright Act
that all:
1994 in the Participating Agency
(i)
Intellectual Property held by the
IP,
Provider before the
and the Provider will sign all documents
Commencement Date;
and do all acts and things that are
(ii)
Intellectual Property developed
necessary to give effect to this clause
independently from this
11.2(c).
Consultancy Services Order by
(d)
To the extent that the Provider needs to
the Provider, and that is not
use any of the Participating Agency’s IP
developed, commissioned or
for the purpose of performing its
created under or in connection
obligations under this Agreement, the
with this Consultancy Services
Participating Agency grants to the
Order; and
Provider, subject to any written direction
(iii)
adaptations and modifications to
given by the Participating Agency, of a
the Intellectual Property
royalty-free, non-exclusive, non-
described in clauses 11.1(a)(i)
transferable licence to use and store the
and (ii),
Participating Agency’s IP for the sole
purpose of performing its obligations
remains the Provider’s sole and
under this Consultancy Services Order
exclusive property (
Provider IP).
during the Term.
(b)
To the extent that the Participating
11.3
Intellectual Property owned by third parties
Agency needs to use any of the Provider
IP to receive the full benefit of the
(a)
To the extent that the Provider needs to
Services, the Provider grants to the
use any Intellectual Property held or
Participating Agency a royalty-free, non-
owned by a third party (
Third Party IP)
exclusive licence (including, if agreed in
in performing the Services under this
this Consultancy Services Order, the
Consultancy Services Order, the
right to sublicense) to use, copy, modify
Provider will use its best endeavours to
and distribute during the Term any
obtain the fullest rights of use and
Provider IP provided to the Participating
licence of that Third Party IP (on terms
Agency by or on behalf of the Provider.
and at a cost to be agreed with the
Participating Agency) as are necessary
11.2
Intellectual Property owned by Participating
for the performance of those Services for
Agency
the benefit of the Participating Agency.
(a)
The Provider acknowledges that the
(b)
The Participating Agency acknowledges
Participating Agency or its licensor has,
that the Provider may have limited ability
and continues to have, sole and
to obtain rights and/or a licence to use
exclusive ownership of all Intellectual
any Third Party IP and, where the
Property rights in all of the Agency
Provider, using its best endeavours,
Information together with all adaptations
cannot obtain appropriate rights and/or a
and modifications of such Agency
licence for the Participating Agency to
Information (
Pre-contract Participating
use that Third Party IP, the warranty in
Agency IP).
clause 9.2(e) applies.
(b)
All Intellectual Property created or
12.
Liability
developed by the Provider or its
employees or Subcontractors in
12.1
Indemnity
performing the Services and developing
the Documentation will be owned by the
(a)
The Provider will, to the extent permitted
Participating Agency from the date the
by Law, indemnify the Participating
Intellectual Property is created or
Agency against all Losses suffered or
developed (
Post-contract Participating
incurred by the Participating Agency as a
Agency IP and, together with the Pre-
result of any:
contract Participating Agency IP, the
(i)
unlawful, malicious or negligent
Participating Agency IP).
act or omission by the Provider;
(c)
If the Provider (or any of its
(ii)
personal injury, sickness, death
Subcontractors) has under any Law any
or loss of, or damage to, tang ble
right in or claim to any of the
property due to an act or
Participating Agency IP or holds any of
omission of the Provider; or
the Participating Agency IP, the Provider
(by itself and for its Subcontractors):
19
COMMERCIAL
COMMERCIAL
(iii)
any other breach by the Provider
name or reputation of the
of its obligations under this
Participating Agency;
Consultancy Services Order.
(iii)
the Provider will not enter into
(b)
The Provider will, subject to clause
any settlement or compromise in
12.1(c), indemnify the Participating
relation to the IP Claim without
Agency against all Losses suffered or
the prior written consent of the
incurred by the Participating Agency as a
Participating Agency (which will
result of any claim that the possession or
not be unreasonably withheld);
use of any Intellectual Property supplied
and
or licensed by the Provider, or the use of
any Intellectual Property used to provide
(iv)
the Provider will notify the CoE of
the Services, infringes any third party’s
the IP Claim, and the outcome
rights.
within 5 Business Days of the
claim being concluded.
(c)
The Provider will have no liability under
clause 12.1(b) to the extent that any IP
(b)
If any IP Claim disrupts the Participating
Claim arises from any:
Agency's use or enjoyment of a Service,
the Provider will (unless otherwise
(i)
modification by the Participating
requested by the CoE), at its own
Agency of any item of Intellectual
expense and at its option, immediately:
Property supplied or licensed by
the Provider without the approval
(i)
obtain for the Participating
of the Provider;
Agency the legal right to
continued use of the infringing
(ii)
use by the Participating Agency
materials; or
of Intellectual Property supplied
or licensed by the Provider for
(ii)
replace, modify or resupply the
any purpose disallowed by this
infringing materials so that there
Consultancy Services Order or
is no further infringement, without
the applicable Intellectual
adversely affecting the
Property licence (but only if the
performance or functionality of
licence has been provided to the
those materials.
Participating Agency prior to
12.3
Maximum liability of Participating Agency
such use); or
In addition to its obligation to pay the Charges,
(iii)
use of Intellectual Property used
the maximum aggregate liability of the
to provide the Services if and to
Participating Agency to the Provider under or in
the extent that Intellectual
connection with this Consultancy Services Order
Property was supplied by the
will be, in respect of all Losses, limited to the
Participating Agency.
total Charges paid and payable under this
12.2
IP Claims
Consultancy Services Order.
(a)
In the event of a claim under clause
12.4
Maximum liability of the Provider
12.1(b) (an
IP Claim):
The maximum liability of the Provider to the
(i)
the Participating Agency will give
Participating Agency for all Losses under or in
the Provider notice of the IP
connection with this Consultancy Services Order
Claim as soon as practicable
in respect of all claims will not exceed:
and, to the extent permiss ble by
(a)
in relation to the sub-categories for which
Law, permit the Provider (at the
the Provider has been appointed as a
Provider's cost) to handle all
Tier 1 Provider, the greater of:
negotiations for settlement and to
control and direct any litigation
(i)
10 times the total Charges paid
that may follow (
Control of the
and payable under this
IP Claim);
Consultancy Services Order;
(ii)
if the Provider has Control of the
(ii)
$5,000,000; and
IP Claim:
(iii)
any greater amount or multiple
(A)
the Participating Agency
set out in this Consultancy
will provide all
Services Order;
reasonable assistance to
(b)
in relation to the sub-categories for which
the Provider (at the
the Provider has been appointed as a
Provider's cost) in the
Tier 2 Provider, the greater of:
handling of any
negotiations and
(i)
10 times the total Charges paid
litigation; and
and payable under this
Consultancy Services Order;
(B)
the Provider will keep the
Participating Agency
(ii)
$2,000,000; and
informed of the defence
or negotiations of the IP
(iii)
any greater amount or multiple
Claim and diligently
set out in this Consultancy
conduct any litigation or
Services Order; and
negotiations, using
(c)
in relation to the sub-categories for which
competent counsel and
the Provider has been appointed as a
in a manner that does
Tier 3 Provider, the greater of:
not adversely affect the
20
COMMERCIAL
COMMERCIAL
(i)
10 times the total Charges paid
comply with clauses 12.8(b)(ii)
and payable under this
and 12.8(b)(iii);
Consultancy Services Order;
(ii)
use all reasonable endeavours to
(ii)
$1,000,000; and
mitigate and remedy the effect of
the Force Majeure Event and
(iii)
any greater amount or multiple
minimise the impact of the event
set out in this Consultancy
on the other party; and
Services Order.
(iii)
use all reasonable endeavours to
12.5
No double dipping
perform its obligations under this
A party to this Consultancy Services Order (or
Consultancy Services Order as
the CoE acting on behalf of the Participating
far as is practicable,
Agency in accordance with the Services
and the Participating Agency will not be
Agreement) cannot recover for the same Loss
required to pay Charges to the extent
under both this Consultancy Services Order and
that the Provider fails to perform its
the Services Agreement.
obligations to the Participating Agency
12.6
Exclusions on liability
due to a Force Majeure Event.
The limitations on liability set out in clauses 12.3
(c)
If the non-performing party affected by
and 12.4 will not limit the liability of:
the Force Majeure Event is the Provider,
the Participating Agency may, to the
(a)
the Provider under clauses 12.1(a) and
extent that any Service requested by the
12.1(b) (other than in respect of
Participating Agency under this
negligent acts or omissions under clause
Consultancy Services Order has not
12.1(a)(i) and breach by the Provider of
been delivered and delivery has, or will
its obligations under this Consultancy
be, delayed by the Force Majeure Event,
Services Order under clause 12.1(a)(iii),
terminate this Consultancy Services
which are subject to the limitations of
Order, by notice to the Provider within
liability in clauses 12.3 and 12.4);
five Business Days following receipt by
the Participating Agency of notice of the
(b)
the Provider for any fraudulent act or
Force Majeure Event, at no cost to the
omission; or
Participating Agency, subject to the
(c)
either party for any breach of
Participating Agency paying for Services
confidentiality.
delivered up to the date of the Force
Majeure Event.
12.7
Categories of loss
12.9
Insurance
(a)
Irrespective of how liability arises, neither
the Provider nor the Participating Agency
(a)
During the Term and for a period of two
will, under any circumstances, be liable
years following the termination of this
for any indirect loss or damage (including
Consultancy Services Order, the
consequential loss) arising under or in
Provider will, at its own expense, ensure
connection with this Consultancy
that it maintains adequate insurance in
Services Order.
respect of its potential liability for loss or
damage under this Consultancy Services
(b)
The Participating Agency will not, under
Order in accordance with Industry Best
any circumstances, be liable for any loss
Practice, but as a minimum the Provider
of profits or loss of revenue suffered by
must hold:
the Provider in connection with this
Consultancy Services Order.
(i)
professional indemnity
insurance;
12.8
Force majeure
(a)
The Provider and the Participating
(ii)
public liability insurance in
Agency will not be liable to the other for
respect of the Services provided
any failure to perform its obligations
under this Consultancy Services
under this Consultancy Services Order
Order; and
during the time and to the extent that
such performance is prevented, wholly or
(iii)
other insurance to cover
substantially, by reason of any Force
standard commercial risks
Majeure Event.
(including in respect of
(b)
The party subject to the Force Majeure
Documentation which is the
Event (the
non-performing party) must:
property of the Participating
Agency and in the Provider’s
(i)
notify the other party as soon as
possession or control).
practicable after the Force
Majeure Event occurs and
provide full information
(b)
The Provider will, at the Participating
concerning the Force Majeure
Agency’s request, promptly provide
Event, including the extent of its
satisfactory evidence that it has complied
inability to perform, an estimate
with its obligations in this clause 12.9.
of the time likely to be required to
13.
Dispute resolution
overcome the Force Majeure
Event and the steps the non-
13.1
Dispute
performing party will take to
In the event of any dispute, difference or
question arising out of, or in connection with, this
21
COMMERCIAL
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Consultancy Services Order or its formation (a
14.1
Termination of Consultancy Services Order
dispute):
The Participating Agency may terminate this
(a)
the Participating Agency and the
Consultancy Services Order:
Provider will each use its best efforts to
resolve the dispute through good faith
(a)
for convenience
by giving the Provider at
negotiations and informal dispute
least one month’s prior written notice;
resolution techniques, and will continue
(b)
by notice to the Provider with immediate
to perform its obligations under this
effect on the date of termination specified
Consultancy Services Order as far as
in that notice, if the Provider commits a
possible as if the dispute had not arisen,
Material Breach which is:
pending final settlement of the dispute;
and
(i)
not capable of being remedied
(and, for the avoidance of doubt,
(b)
neither the Participating Agency nor the
paragraphs (a) and (b) of the
Provider will commence any formal
definition of “Material Breach” are
proceedings relating to the dispute
deemed incapable of being
unless it has complied with clause 13.2.
remedied); or
13.2
Escalation
(ii)
capable of being remedied but
(a)
The Participating Agency and the
which is not remedied to the
Provider will each advise its respective
satisfaction of the Participating
Representative (or equivalent person) of
Agency within 10 Business Days
a dispute on the day that the dispute
following the date of receipt by
arises.
the Provider of the Participating
Agency’s notice of the Material
(b)
The Representatives will use their best
Breach;
efforts to resolve the dispute in
accordance with clause 13.1(a).
(c)
in accordance with clause 4.1(e) (Conflict
of Interest); or
(c)
If the dispute is not resolved:
(d)
in accordance with clause 12.8(c) (Force
(i)
within 10 Business Days, the
Majeure Event).
dispute will be escalated to
senior representatives of the
14.2
Consequences of termination or expiry
Provider and the Participating
(a)
In the event of termination or expiry of
Agency with delegated authority
this Consultancy Services Order, the
to resolve the dispute; and
Participating Agency will not be obliged
(ii)
in relation to the sub-categories
to make any payment to the Provider
for which the Provider has been
except for any Charges payable for
appointed as a Tier 1 and Tier 2
Services supplied pursuant to this
Provider, within a further 10
Consultancy Services Order before the
Business Days, the dispute will
effective date of expiry or termination.
be escalated to the CoE’s
(b)
Termination or expiry will not, unless
Manager, All-of-Government
otherwise provided in this Consultancy
Contracts and the Provider’s
Services Order, affect:
Chief Executive.
(i)
any rights and remedies
13.3
Mediation
available to either party which
(a)
If a dispute is not resolved under clause
have accrued up to and including
13.2, either party may, by written notice
the date of termination or expiry;
to the other, refer the dispute to
and
mediation, or they may agree in writing to
(ii)
the provisions of this
refer the dispute to mediation.
Consultancy Services Order
(b)
The mediation will be conducted by a
which expressly, or by their
single mediator in accordance with the
nature, survive termination or
terms of the Resolution Institute
expiry, including clauses 16
Standard Mediation Agreement and at a
(Entire agreement), 10
fee to be agreed by the parties.
(Confidentiality), 11 (Intellectual
Property), 12 (Liability), 13
(c)
If the parties fail to agree on the identity
(Dispute Resolution), 15.2
of the mediator and/or the mediator’s fee
(Consequences of termination or
within five Business Days of referral of
expiry) and 17 (General) and
the dispute to mediation, the mediator
Schedule 1 (Definitions);
will be chosen, and the mediator’s fee
determined, by the chairperson for the
(iii)
the continued application of
time being of Resolution Institute (or his
clauses of the Services
or her nominee).
Agreement which expressly, or
by their nature, are intended to
13.4
Urgent relief
continue to apply to this
Consultancy Services Order after
Nothing in this clause 13 will preclude either
termination or expiry of this
party from taking immediate steps to seek urgent
Consultancy Services Order,
relief before a New Zealand court.
including clauses
14.
Termination
1.4 (Precedence) and 15 (Audit).
22
COMMERCIAL
COMMERCIAL
(c)
After expiry or termination of this
A party who has an obligation to do anything
Consultancy Services Order for any
under this Consultancy Services Order will
reason, each party will, within five
perform that obligation at its own cost, unless a
Business Days of receiving notice from
term of this Consultancy Services Order
the other party, return all Documentation,
expressly provides otherwise.
Confidential Information or other property
belonging to the other party (or destroy
16.4
Assignment
such Confidential Information, if
Neither party may assign, novate, transfer or
requested), except if such
otherwise dispose of the whole or any part of its
Documentation, Confidential Information
rights and obligations under this Consultancy
or other property is required to be
Services Order without first obtaining the other
retained by any Law.
party’s consent (which will not be unreasonably
15.
Entire agreement
withheld or delayed).
16.5
Public disclosures
15.1
Entire agreement
Subject to clause 10, all public disclosures by the
(a)
This Consultancy Services Order is
Provider relating to this Consultancy Services
intended to be read in conjunction with
Order, including the fact of its existence (but not
the Services Agreement. The provisions
including any announcement intended solely for
of the Services Agreement (not already
internal distribution or any disclosure required by
included in this Consultancy Services
legal, accounting or regulatory requirements), will
Order) which confer rights, obligations or
be co-ordinated with, and must first be approved
benefits on the parties or the CoE in
in writing by, the Participating Agency prior to
respect of this Consultancy Services
release.
Order are intended to apply to this
Consultancy Services Order.
16.6
Notices
(b)
Subject to clause 16.1(a), no other terms
(a)
Unless otherwise specified in this
or conditions, including any conditions of
Consultancy Services Order, each notice
sale, invoices or any other
or other communication under this
communication not included in this
Consultancy Services Order will be made
Consultancy Services Order
in writing and delivered by post, personal
(
Communication), will be incorporated
delivery or email to the addressee at the
into this Consultancy Services Order,
addressee’s postal address, physical
even if at some later date the other party
address or email address (as applicable)
(including, in the case of the Participating
and marked for the attention of the
Agency) signs or otherwise purports to
person or office holder (if any) from time
accept those terms and conditions or the
to time designated for that purpose by
terms of that Communication.
the addressee.
(c)
For the avoidance of doubt, and without
(b)
The Provider’s postal address, physical
limiting clauses 16.1(a) and 16.1(b):
address and email address is set out in
the Provider Database and may be
(i)
any Communication which is
amended by the Provider at any time.
expressed or intended to operate
as an indemnity, warranty,
(c)
The Participating Agency’s postal
representation, undertaking,
address, physical address and email
condition or other term of such a
address is as notified by the Participating
nature is hereby disapplied and
Agency to the Provider and may be
excluded from this Consultancy
amended by the Participating Agency at
Services Order; and
any time.
(ii)
any part of this Consultancy
(d)
A notice or other communication will be
Services Order which describes
deemed to be received:
the nature, scope, price or
manner of delivery of Services
(i)
in the case of a letter sent to the
will, subject to clause 16.1(c)(i),
addressee’s postal address, on
form part of this Consultancy
the third Business Day after
Services Order, but only to the
posting;
extent that it does not conflict
(ii)
in the case of personal delivery,
with any other part of this
on receipt; and
Consultancy Services Order.
(iii)
in the case of an email, at the
16.
General
time the email leaves the
16.1
Interpretation
communications system of the
sender, provided that the sender:
The rules of interpretation set out in clause 19.1
of the Services Agreement apply to this
(A)
does not receive any
Consultancy Services Order.
error message relating to
the sending of the email
16.2
Relationship of the parties
at the time of sending;
and
Nothing expressed or implied in this Consultancy
Services Order will be deemed to constitute
(B)
has obtained
either party as the partner, agent, or joint
confirmation that the
venturer of the other party.
email has been delivered
to the recipient (which
16.3
Costs
confirmation may be in
23
COMMERCIAL
COMMERCIAL
the form of an automated
delivery receipt from the
communications system
of the recipient),
on the Business Day on which it
SCHEDULE 1: DEFINITIONS
is dispatched or, if dispatched
after 5 p.m. (in the place of
In this Consultancy Services Order, unless the context
receipt), on the next Business
otherwise requires:
Day after the date of dispatch.
Administration Fee means the amount referred to in clause
16.7
Severability
8.6;
If any term or provision of this Consultancy
Agency Information means all:
Services Order is held to be illegal, invalid or
unenforceable it will be severed from this
(a)
information and records belonging to the Participating
Consultancy Services Order without affecting the
Agency that are supplied to or collected by the Provider
legality, validity or enforceability of the remaining
for the purpose of enabling the Provider to perform its
provisions.
obligations under this Consultancy Services Order;
16.8
Waiver
(b)
compilations of data created by a Participating Agency
or the Provider for the purposes of this Consultancy
(a)
Neither party will be deemed to have
Services Order; and
waived any right under this Consultancy
Services Order unless the waiver is in
(c)
legal names, logos, trademarks, brands or images of
writing and signed by the parties.
the Participating Agency, including all related
Intellectual Property of the Participating Agency and
(b)
Any failure or delay by a party to
the New Zealand Coat of Arms or any other coat of
exercise any right or power under this
arms or emblem used by the Participating Agency,
Consultancy Services Order will not
operate as a waiver of that right or
but excluding the Provider’s working papers;
power.
Annexure means any document physically attached to a
(c)
Any waiver by a party of any breach, or
Schedule and identified as such and any other document
failure to exercise any right, under this
incorporated by reference in any part of this Consultancy
Consultancy Services Order will not
Services Order (other than an Annexure);
constitute a waiver of any subsequent
Appointment Letter means the letter issued to the Provider
breach or continuing right.
by the CoE, as amended or reissued from time to time,
16.9
Remedies cumulative
confirming (among other things) the Provider’s appointment
as an All-of-Government provider of consultancy services
Except as is expressly stated otherwise in this
and detailing the terms and conditions of the appointment
Consultancy Services Order:
(including the Services and the applicable Tier(s));
(a)
the rights, powers and remedies
Business Day means any day of the year other than a
provided in this Consultancy Services
Saturday, a Sunday or a public holiday (as defined in section
Order are cumulative and are not
44 of the Holidays Act 2003) observed at the location of the
exclusive of any rights, powers or
Participating Agency;
remedies provided by Law or under this
Consultancy Services Order; and
Charges means the amount payable by Participating
Agencies for Services and includes Fees and Expenses, as
(b)
the exercise of any rights, powers and
described in Schedule 2 (Pricing) and agreed in this
remedies provided in this Consultancy
Consultancy Services Order;
Services Order will not prejudice the
exercise of any other right, power or
CoE means the Ministry of Business, Innovation and
remedy under this Consultancy Services
Employment, the Centre of Expertise for Consultancy
Order or existing at Law.
Services;
16.10
Counterparts
Commencement Date is the date on which this Consultancy
Services Order is signed by both parties or, if two dates, the
This Consultancy Services Order may be signed
later date;
in two counterparts, each of which will be
deemed an original, but both of which together
Confidential Information means:
are to constitute a single instrument.
(a)
all information and trade secrets already
16.11
Governing law and jurisdiction
communicated or subsequently communicated under
or in connection with this Consultancy Services Order,
(a)
This Consultancy Services Order is
including information obtained during the negotiation of
governed by, and will be construed in
this Consultancy Services Order or in the performance
accordance with, the laws of New
of this Consultancy Services Order and information on
Zealand.
the Provider Database;
(b)
Subject to clause 13, each party
(b)
any information about the business or property of either
irrevocably submits to the exclusive
party including any information:
jurisdiction of the New Zealand courts for
the purpose of hearing and determining
(i)
relating to the financial position of that party;
any dispute under, or in connection with,
(ii)
concerning that party’s suppliers and customers;
this Agreement.
or
(iii)
relating to that party’s internal management,
structure, Personnel or strategies;
24
COMMERCIAL
COMMERCIAL
(c)
the terms of this Consultancy Services Order; and
(b)
for which the Provider, given its knowledge of the
Participating Agency and understanding why the
(d)
Agency Information;
Services or Documentation are required, has reason to
Conflict of Interest means any matter, circumstance,
expect such Services or Documentation to be used;
interest or activity of the Provider, its Personnel or
Force Majeure Event means an event or circumstance
Subcontractors, arising by whatever means that directly or
beyond the reasonable control of either party which makes it
indirectly conflicts with:
impossible or illegal to perform, or prevents compliance with,
(a)
the duties of the Provider and any of its Personnel or
or the performance of, a party’s obligations under this
Subcontractors to the Participating Agency; or
Consultancy Services Order, including:
(b)
the interests of the Participating Agency in relation to
(a)
fire, floods, tsunami, storms, tempest, earthquake or
this Consultancy Services Order or otherwise in
other act of God;
respect to the provision of consultancy services to the
(b)
any act of a public enemy, war, riot, or act of civil or
Participating Agency either before or after the
military authority;
Commencement Date;
(c)
nuclear, chemical or biological contamination; and
or otherwise impairs or might appear to impair the ability of
the Provider (or any of its Personnel or Subcontractors) to
(d)
subject to paragraph (g) of this definition, any act of a
provide the Services to the Participating Agency under this
third party engaged in subversive or terrorist activity or
Consultancy Services Order diligently, independently,
sabotage,
impartially and in the best interests of the Participating
Agency;
but does not include an event to the extent that:
Consultancy Services Order means this service order
(e)
the effect of that event could have been substantially
relating to the supply of Services issued by the Participating
prevented, avoided or overcome or mitigated by:
Agency;
(i)
implementation of any contracted business
Contract Quarter means a period of three consecutive
continuity or disaster recovery service, or any
months commencing on 1 January, 1 April, 1 July or 1
contingency plans agreed between the parties or
October;
which a party has represented it has in place; or
Control means, in relation to the Provider or any ultimate or
(ii)
exercising a reasonable standard of care; or
intermediate holding company or Holding Entity of the
(iii)
using information provided by the other party or
Provider, the power to:
which is available in the public domain; or
(a)
manage, directly or indirectly, the operation of the
(f)
it is an event for which the party affected is or was
business; or
directly respons ble; or
(b)
control, directly or indirectly, the composition of the
(g)
that event is constituted or caused by any act or
board of directors or board of management or
omission of Personnel or a Subcontractor unless and
equivalent governing body,
to the extent that the Personnel or Subcontractor was
of the Provider or such ultimate or intermediate holding
itself affected by an event, which if it occurred in
company or Holding Entity, whether through the ownership of
relation to either party would have been a Force
voting securities, by contract or otherwise, and for these
Majeure Event; or
purposes “holding company” will have the same meaning as
(h)
that event is constituted or caused by an Insolvency
in section 5 of the Companies Act 1993;
Event or the insolvency of a Subcontractor or lack of
Documentation means all advice, communications,
funds for any reason;
documentation (including information on the Provider
GST means goods and services tax under the Goods and
Database) and reports (whether in paper, electronic, audio or
Services Tax Act 1985;
audio-visual format) relating to, or provided as part of, the
Services together with additions, modifications to, and
Holding Entity means a trust, unit trust, partnership, limited
replacements of, that documentation, but excludes the
partnership, unincorporated joint venture or other body
Provider’s working papers;
corporate or unincorporated body of persons that Controls
the Provider, and includes any natural person that Controls
Estimate means an estimate of the total Charges for the
the Provider;
Services required by the Participating Agency;
Industry Best Practice means the high professional
Expense means any actual and reasonable out-of-pocket
standard that would reasonably be expected from a prudent
costs incurred by the Provider in the delivery of the Services
and experienced provider of consultancy services in New
and agreed to in this Consultancy Services Order, and
Zealand having regard to market practice at the relevant
includes any freight and related costs, travelling and
time;
incidental expenses and other costs, disbursements, fees,
charges and expenses directly or indirectly incurred by the
Insolvency Event means, in relation to the Provider:
Provider;
(a)
the presentation of an application for its liquidation that
Fees means the amount payable by the Participating Agency
is not discharged within 30 days of its filing or which is
to the Provider for its time spent delivering the Services
not demonstrated to the Participating Agency prior to
calculated on the basis of the Rates, excluding Expenses;
the expiry of that 30 day period as being an application
that is frivolous or vexatious;
Fit for Purpose means, in relation to any Service or
Documentation to be provided by the Provider to the
(b)
any step taken in or toward the making of any
Participating Agency, that such Services or Documentation
compromise, proposal or deed of arrangement with all
are, in descending order of priority, fit for the purpose(s):
or some of its creditors;
(a)
expressly made known in writing by the Participating
(c)
the appointment of a liquidator, receiver, statutory
Agency to the Provider (including in this Consultancy
manager, administrator or similar official, to it;
Services Order); or
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(d)
the suspension or threatened suspension by it of the
Panel means the All-of-Government panel of providers who
payment of its debts;
provide consultancy services to Participating Agencies,
including any sub-panel, as detailed on
(e)
cessation by it of a whole or any relevant part of its
www.procurement.govt.nz;
business in New Zealand;
Participating Agency means the Participating Agency that
(f)
the enforcement of any security against the whole or a
is a party to this Consultancy Services Order;
substantial part of its assets; or
Participating Agencies means each of the CoE and every
(g)
any other insolvency event or proceedings analogous
other Eligible Agency that is a party to the memorandum of
to any of the foregoing occurring in any relevant
understanding
between the CoE and all other Participating
jurisdiction;
Agencies relating to the management of their relationship
Intellectual Property means copyright, all rights in relation
with each other and with the Provider in relation to the
to inventions (including patents), registered and unregistered
Services, as amended from time to time;
trademarks, registered and unregistered designs, trade or
Personnel includes partners, principals, directors,
other proprietary rights or rights derivative of those rights
employees, agents, officers and individual independent
(including licence rights) anywhere in the world as well as
contractors;
any other rights in intellectual property which are recognised
or protected under Law;
Professional Adviser means any accounting, legal,
procurement or technical professional;
Law means:
Provider Database means the IT platform described in
(a)
any statute, regulation, bylaw, ordinance or
Schedule 7 (Provider Database) to the Services Agreement;
subordinate legislation in force from time to time to
which a party is subject;
Quote means a fixed price, capped price or other pre-agreed
basis for establishing the Charges for Services required by
(b)
the common law and the law of equity as applicable to
the Participating Agency where the Provider is prevented
the parties from time to time;
from increasing the Charges without the prior written consent
(c)
any binding court order, judgment or decree;
of the Participating Agency;
(d)
any applicable industry code of practice or conduct,
Rates means the rates (whether hourly, daily or weekly or
convention, policy, rule or standard to which a party is
other time-related basis) payable to the Provider for providing
bound; or
the Services, determined in accordance with Schedule 2
(Pricing), excluding Expenses;
(e)
any applicable direction, policy, permission, consent,
licence, rule or order that is binding on a party and that
Related Entity means a related company under the
is made or given by any governmental or regulatory
Companies Act 1993 (New Zealand) or a related body
body having jurisdiction over a party or any of that
corporate under the Corporations Act 200, provided that any
party’s assets, resources or business,
reference in the Companies Act 1993 to a “company” is
deemed to include any partnership, body corporate,
in any jurisdiction that is applicable to this Consultancy
association or other entity, whether corporate or
Services Order;
unincorporated, irrespective of the place of incorporation or
registration of that partnership, body corporate, association
Losses means liabilities, expenses, losses, damages and
or other entity;
costs (including legal costs on a full indemnity basis);
Representative has the meaning given in paragraph 3.1 of
Material Breach means any material breach by the Provider
Schedule 5 (Governance) to the Services Agreement);
of the terms of this Consultancy Services Order or the
occurrence of any event having a material effect on the ability
Service Level means a required standard for the Provider’s
of the Provider to perform its obligations under this
performance of its obligations under this Consultancy
Consultancy Services Order (other than a Force Majeure
Services Order, as described in Schedule 3 (Performance
Event), including:
Measurement);
(a)
the occurrence of an Insolvency Event in relation to the
Service Level Default means a failure by the Provider to
Provider or the likely occurrence of an Insolvency
meet one or more Service Levels;
Event;
Services means the consultancy services provided from time
(b)
the occurrence of a change in Control of the Provider
to time under the terms of this Consultancy Services Order;
or any ultimate or intermediate holding company or
Holding Entity of the Provider that the CoE has not
Services Agreement means the All-of-Government services
previously approved (acting reasonably);
agreement relating to the supply of Tier 1 and 2 consultancy
services between the CoE and the Provider;
(c)
any representation or warranty made by the Provider in
terms of this Consultancy Services Order being found
Subcontractor means any person to whom the Provider has
to be untrue or incorrect; and
subcontracted any part of its obligations under this
Consultancy Services Order or who is a supplier to the
(d)
any failure on the part of the Provider to comply with,
Provider in respect of this Consultancy Services Order and
observe or perform any of the terms of this
includes the employees and subcontractors of that person
Consultancy Services Order in circumstances where
and
Subcontract will be construed accordingly;
that contract breach or that contract breach together
with other contract breaches is considered by the
Term means the period commencing on the date that this
Participating Agency on reasonable grounds to cause
Consultancy Services Order is signed by both parties and
the Provider to be unable or unwilling, or be likely to be
ending on the earlier of:
unable or unwilling, to perform its obligations under this
(a)
the date on which the Services are completed in
Consultancy Services Order;
accordance with this Consultancy Services Order; and
Maximum Rates means the maximum Rates payable to the
(b)
the date on which this Consultancy Services Order is
Provider for providing the Services, as recorded in the
terminated in accordance with its terms; and
Provider Database, excluding Expenses;
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