under the Official Information Act 1982
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under the Official Information Act 1982
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under the Official Information Act 1982
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under the Official Information Act 1982
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Part B – completed by the Provider
The Services
We acknowledge the primary deliverable is a comprehensive report. The Report will contain:
•
Research that goes beyond the descriptive nature of previous consultation processes (such as the 2019 OIA
consultation) to provide evaluation and analysis of cost drivers
•
Evidence-based insights into why OIA costs are high and where the pressure points lie
•
Practical recommendations for improving efficiency while maintaining transparency obligations
•
A methodology that captures both quantitative cost data and qualitative insights from experienced
practitioners
Nominated Personnel
1982
Name
Job Title
Relevant Expertise
s9(2)(a)
Senior
s9(2)(a)
Act
Partner
s9(2)(a)
Principal
s9(2)(a)
Consultant
Information
s9(2)(a)
Consultant
s9(2)(a)
Official
the
Brief Project Plan
Research Methodology
The Provider will undertake a mixed-methodology approach combining targeted interviews with a wider survey to
under
ensure both depth and breadth of insights.
In providing the Services and Deliverables, the Provider will undertake the following phases and associated work:
Phase 1: Hypothesis Development & Framework Design •
Develop a clear hypothesis framework regarding the drivers of OIA costs
•
Design an optimised information capture schema
•
Create a smart survey
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•
Road-test approach through initial stakeholder interviews
Phase 2: Targeted Agency Research The Provider will utilise an agency cohort structure that provides an excellent basis for strategic targeting:
Routine Agencies Cohort (All 6 agencies) •
Comprehensive coverage of agencies with high-volume, routine OIA processing
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under the Official Information Act 1982
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under the Official Information Act 1982
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Subcontracting
$
Expenses
$
Total Charges
$40,000
Identify whether the Total Charges is an Estimate / Quote Excludes GST & AOG Fee (if any).
and the method that the Charges have been calculated
Assumes no travel time or costs for any workshops or meetings
outside of Wellington CBD or online. Any costs will only be
incurred with MOJ prior approval.
Additional information / assumptions:
1982
The Provider guarantees all of their work. If the Client isn’t happy and the Provider is unable to put it right, the Provider will
not invoice the Client.
Act
The Provider’s assumptions, on which this proposal is based upon, include that the Client’s staff have sufficient capacity and
availability to support timeframes for delivery of this assignment, and feedback to the Provider will be provided in a timely
manner.
Quality Assurance:
The Provider appreciates that Clients ask for their assistance because they are under pressure, or they need specialist
expertise that it doesn’t make sense to retain on their team. Therefore, delivering to the Client’s expectations regarding
time, cost and quality is integral to the success of the Provider’s business.
Information
The Provider has a hands-on approach to the management of assignments to ensure that their team delivers to the Client’s
expectations. The Provider adapts this process to suit the nature of the assignment and the needs of the Client. The Provider’s
quality assurance process will include:
● agreeing an assignment brief with the Client at the outset to clarify scope, time and quality expectations
● regular formal reporting from the Provider’s assigned resource to their engagement manager
Official
● regular formal reporting from the Provider’s assigned resource to the Client
● regular phone (or face-to-face) meetings between the Client and the Provider’s engagement manager. This
the
includes checking the Provider is delivering to the Client’s requirements and helping address any wider
challenges the Client may be facing
● arranging an assignment evaluation upon closure of the engagement to assess the success of the
engagement, and/or a pulse check in at mid-point(s) throughout a longer-term assignment.
under
Confidentiality:
The Provider will not use or disclose the Client’s confidential information to any person or organisation other than when:
• that use or disclosure is necessary to provide the services described above, and
• the Client gives prior written agreement to the disclosure.
Security, health and safety:
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The Provider’s consultants will fully comply with all of the Client’s security and health and safety requirements when working
on the Client’s site.
The Provider also expects that the Client will provide a safe and healthy environment for the Provider’s consultants when
they are working on the Client’s site.
6
under the Official Information Act 1982
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under the Official Information Act 1982
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under the Official Information Act 1982
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under the Official Information Act 1982
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Part F – Terms
THE PROVIDER AND PARTICIPATING AGENCIES ARE NOT PERMITTED TO AMEND THIS PART F.
This Part F contains an extract of selected terms and conditions from the Services Agreement (the Agreement). Clause,
schedule and paragraph references have been updated to refer to clauses, schedules and paragraphs in this Part F where
applicable. For the full terms and conditions that govern the Services, please refer to the Agreement.
1.
Appointment
1.1
Appointment
1982
(a)
The Participating Agency appoints the Provider to provide Services to the Participating Agency as detailed in this Consultancy Services
Order and the Provider accepts that appointment, in accordance with the terms of this Consultancy Services Order.
(b)
Certain obligations of the Provider in this Consultancy Services Order do not apply to sub-categories of Services for which the Provider has
been appointed as a Tier 3 Provider as follows:
Act
(i)
the Participating Agency may nominate specific Personnel to be the primary providers or to supervise the delivery of the Services
but clause
s 6.2(b) to 6.2(e) do not apply to any nominated Personnel;
(ii)
the relevant Services are not required to meet or exceed the Service Levels specified in Schedule 3 (Performance Measurement)
and clau
se 2.5(a), Schedule 3 (Performance Measurement) do not apply;
(iii)
the Provider is not required to pay an Administration Fee and clau
se 8.3(a)(v) does not apply;
(iv)
the Provider is not required to conduct the Agency Satisfaction Survey for the relevant Services and clau
se 5.1(h) does not apply;
(v)
the Provider and Participating Agency are not obligated to escalate a dispute to the CoE’s All-of-Government Procurement
Manager, Centre of Expertise for Consultancy, in accordance with clau
se 13.2(c)(ii); and
Information
(vi)
as otherwise stated in this Consultancy Services Order.
2.
Services
2.1
Services
(a)
The Provider will provide Services to the Participating Agency in accordance with the terms of this Consultancy Services Order.
(b)
The Provider will use all reasonable endeavours to ensure that, on the date the Documentation is provided under this Consultancy Services
Official
Order, such Documentation is in a readable and readily useable format.
2.2
Agents may procure Services
The Participating Agency may, by notice to the Provider and the CoE, appoint one or more third parties to procure Services under this Consultancy
the
Services Order on the Participating Agency’s behalf and/or receive invoices, as if that agent was a Participating Agency, provided that any such
procurement is for the sole benefit of the Participating Agency.
2.3
Timely performance
The Provider will ensure that the Services to be performed under this Consultancy Services Order are provided on or before the date specified for
performance (if any) in this Consultancy Services Order and, if no time is specified, within a reasonable time after the issue of the Consultancy
Services Order.
under
2.4
Delay
(a)
If the Provider considers that it is (or is likely to be) prevented or delayed from achieving a date or time for performance (
Milestone)
specified in this Consultancy Services Order (
Delay), it will:
(i)
immediately provide notice verbally or in writing to the Participating Agency, setting out:
(A)
the cause of the Delay and its expected duration;
(B)
the effect of the Delay on its ability to perform its obligations under this Consultancy Services Order (including any future
Milestones);
Released (C) what extension, if any, to the relevant Milestone is being sought; and
(D)
what steps, if any, the Participating Agency may take to mitigate the effect of the Delay; and
(ii)
take all reasonable steps necessary (including by the allocation of additional resources) to eliminate or avoid the Delay and, in all
cases, mitigate its effects.
(b)
If the Provider and Participating Agency agree that the Delay is acceptable or wish to amend the Milestone:
(i)
the Provider will complete and submit Part C of this Consultancy Services Order to the Participating Agency; and
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(ii)
upon receipt of the completed Part C of this Consultancy Services Order, the Participating Agency must promptly advise the
Provider in writing if the completed Part C is acceptable.
(c)
If the Provider does not achieve the Milestone (as amended from time to time) and the Participating Agency’s acts or omissions, or those
of its Personnel or third parties acting on its behalf, have not caused the Provider to fail to achieve the Milestone, the Participating Agency
may, without prejudice to any other right or remedy, suspend payment of any Charges relating to this Consultancy Services Order until the
Provider remedies the relevant failure.
(A)
the cause of the Delay and its expected duration;
(B)
the effect of the Delay on its ability to perform its obligations under this Consultancy Services Order (including any future
Milestones);
(C)
what extension, if any, to the relevant Milestone is being sought; and
(D)
what steps, if any, the Participating Agency may take to mitigate the effect of the Delay; and
(ii)
take all reasonable steps necessary (including by the allocation of additional resources) to eliminate or avoid the Delay and, in all
cases, mitigate its effects.
1982
(d)
If the Provider and Participating Agency agree that the Delay is acceptable or wish to amend the Milestone:
(i)
the Provider will complete and submit Part C of this Consultancy Services Order to the Participating Agency; and
(ii)
upon receipt of the completed Part C of this Consultancy Services Order, the Participating Agency must promptly advise the
Act
Provider in writing if the completed Part C is acceptable.
(e)
If the Provider does not achieve the Milestone (as amended from time to time) and the Participating Agency’s acts or omissions, or those
of its Personnel or third parties acting on its behalf, have not caused the Provider to fail to achieve the Milestone, the Participating Agency
may, without prejudice to any other right or remedy, suspend payment of any Charges relating to this Consultancy Services Order until the
Provider remedies the relevant failure.
2.5
Service standards
(a)
The Provider must provide the Services in relation to the sub-categories for which the Provider has been appointed as a Tier 1 and Tier 2
Provider to a standard that reaches or exceeds the Service Levels specified in Schedule 3 (Performance Measurement).
(b)
In addition, the Provider must:
(i)
provide the Services diligently, efficiently, effectively and in accordance with Industry Best Practice;
Information
(ii)
ensure that the Services to be performed under this Consultancy Services Order are provided on or before the date specified for
performance (if any) in this Consultancy Services Order and, if no time is specified, within a reasonable time after the issue of this
Consultancy Services Order;
(iii)
ensure that all Documentation, information and advice (including Documentation, information and advice provided prior to the
issue of this Consultancy Services Order) provided to the Participating Agency or published on the Provider Database is Fit for
Purpose so that, without limitation, it contains sufficient content and detail to enable the Participating Agency to make use of it
for the purpose for which it was requested;
Official
(iv)
act in the best interests of the Participating Agency in the provision of Services to the Participating Agency; and
(v)
provide Services to the reasonable satisfaction of the Participating Agency (as reported to the CoE).
the
3.
Estimates and Quotes
3.1
Estimates and Quotes
(a)
The Provider must provide an Estimate or Quote for all Services to be provided under this Consultancy Services Order, unless the total Fees
in respect of the Services under this Consultancy Services Order are likely to be less than $10,000 (exclusive of GST) or such other amount
as determined by the CoE and notified to the Provider.
under
(b)
Despite clau
se 3.1(a), if, during the course of providing the Services, the Provider becomes aware that the total Fees (excluding GST) are
likely to exceed the amount referred to in clau
se 3.1(a), the Provider must provide an Estimate in accordance with clause
s 3.1(c) to (e).
(c)
All Estimates and Quotes will be provided at no cost to the Participating Agency.
(d)
All Estimates and Quotes must specify the estimated timeframe to perform the Services requested in this Consultancy Services Order and
the Rates of Personnel providing the Services and include any Expenses likely to be incurred in providing the Services.
(e)
All Quotes and Estimates must be provided to the Participating Agency in writing and must be included in this Consultancy Services Order.
(f)
To avoid doubt and without limiting clause 4.5(c) of the Services Agreement, if any Quote or Estimate is not acceptable to the Participating
Agency, the Participating Agency and Provider may seek to negotiate a more favourable Quote or Estimate, including a decrease in the
Released
Rates on which the Quote or Estimate was based.
3.2
If Charges exceed the Estimate
(a)
If during the course of providing the Services under this Consultancy Services Order, the Provider becomes aware that the total Charges
(excluding GST) are likely to exceed the Estimate, the Provider must give written notice to the Participating Agency using Part D of this
Consultancy Services Order as soon as the Provider becomes so aware, but no later than the time the costs accrued or incurred reach 80%
of the Estimate.
(b)
The notice under clau
se 3.2(a) must specify a revised Estimate for the Services and include the reason the total Charges will exceed the
original Estimate.
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(c)
The Participating Agency has sole discretion whether to approve a revised Estimate and must act reasonably when deciding whether to
approve a revised Estimate.
(d)
When a revised Estimate is approved, the Participating Agency must provide written notice of the same to the Provider.
(e)
If a Provider has provided an Estimate to the Participating Agency for Services, the Participating Agency is not liable to pay the Provider any
amount exceeding the Estimate unless the Participating Agency has approved a revised Estimate.
3.3
If Charges exceed the Quote
(a)
The Provider acknowledges that neither the CoE nor the Participating Agency are obliged to pay any Charges to the Provider in relation to
Services performed under this Consultancy Services Order if those Charges exceed any Quote provided in relation to this Consultancy
Services Order, unless the Participating Agency has given its prior written consent in accordance with clau
se 3.3(b).
(b)
If the Participating Agency agrees to allow the Provider to increase the Charges:
(i)
the Provider will complete and submit Part D of this Consultancy Services Order to the Participating Agency; and
(ii)
upon receipt of the completed Part D of this Consultancy Services Order, the Participating Agency must promptly advise the
Provider (in writing) if the completed Part D is acceptable.
1982
4.
Conflicts of interest
4.1
Conflicts of interest
Act
(a)
The Provider must, upon receipt of this Consultancy Services Order, make diligent inquiry whether it has any actual, potential or perceived
Conflicts of Interest if it were to provide the Services specified in this Consultancy Services Order and, if no such Conflict of Interest exists,
the Provider must provide confirmation to that effect to the Participating Agency.
(b)
If the Provider has an actual, potential or perceived Conflict of Interest, the Provider must immediately notify the Participating Agency and
must not begin performing the Services without the prior written approval of the Participating Agency.
(c)
The Provider must take all reasonable steps to ensure that:
(i)
a situation does not arise that might result in an actual, potential or perceived Conflict of Interest; and
(ii)
any Personnel or Subcontractors of the Provider do not engage in any activity or obtain interests that might result in the Provider
or such Personnel or Subcontractors having an actual, potential or perceived Conflict of Interest,
Information
that cannot be managed to the satisfaction of the Participating Agency.
(d)
If, after commencing Services under this Consultancy Services Order, the Provider becomes aware of any matter, circumstance, interest or
activity that may give rise to any actual, potential or perceived Conflict of Interest, the Provider must immediately notify the Participating
Agency of all relevant details and must immediately cease work on the Services until such time as the Participating Agency provides
written notice confirming the Provider may continue to perform the Services or terminates the engagement of the Provider in respect to
the Services to be performed under this Consultancy Services Order in accordance with clause
4.1(e).
Official
(e)
If the Participating Agency considers that the Provider has an actual Conflict of Interest of sufficient gravity that the Provider can no longer
perform Services for it, the Participating Agency may, by written notice to the Provider, terminate this Consultancy Services Order with
immediate effect on the date of termination specified in that notice.
the
(f)
Any approval or notice given by the Participating Agency pursuant to claus
e 4.1(b) or 4.1(d) may require the Provider to take steps
reasonably required by the Participating Agency to manage the Conflict of Interest, and the Provider must provide written notice
confirming its acceptance of those steps before it may commence or continue to provide the Services under this Consultancy Services
Order.
under
5.
Responsibilities
5.1
Provider responsibilities
In addition to its other obligations under this Consultancy Services Order, the Provider will:
(a)
respond promptly, accurately and adequately to any requests for information made by the Participating Agency in relation to the Services,
including requests for advice;
(b)
in performing Services for the Participating Agency under this Consultancy Services Order comply with all privacy and other policies and
guidelines issued by the Participating Agency and notified or made available to the Provider;
Released
(c)
obtain, maintain and comply with any governmental, regulatory or other approvals, permissions, consents, licences, and requirements
necessary to provide the Services and perform its obligations under this Consultancy Services Order;
(d)
comply with all Laws at all times during the Term in so far as they relate to the provision of the Services, including the Privacy Act 1993 and
all applicable consumer laws;
(e)
ensure that it and its Personnel providing the Services do not access the Participating Agency’s information or systems except to the extent
necessary to provide the Services and for no other purpose;
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(f)
as soon as is practicable, notify the Participating Agency of any problems or issues that arise in relation to the performance of its
obligations under this Consultancy Services Order, including any problems or issues that will, or are likely to, affect the provision or quality
of the Services or the ability of the Provider to perform its obligations under this Consultancy Services Order;
(g)
without limiting any other provision of this Consultancy Services Order, use all reasonable endeavours to avoid damaging or adversely
affecting any Participating Agency’s reputation;
(h)
in relation to the sub-categories for which the Provider has been appointed as a Tier 1 and Tier 2 Provider, conduct the Agency Satisfaction
Survey by asking the Participating Agency the questions recorded in Annexure A of Schedule 5 (Governance) to the Services Agreement
within 5 Business Days of the Services in this Consultancy Services Order being completed.
5.2
Participating Agencies’ responsibilities
The Participating Agency has the following responsibilities in relation to the Services:
(a)
to manage its operational relationship with the Provider, including in relation to the fulfilment of this Consultancy Services Order;
1982
(b)
to notify the Provider of all relevant policies, guidelines and procedures of the Participating Agency that the Provider must comply with
when performing the Services under this Consultancy Services Order;
Act
(c)
to provide adequate instructions and information to the Provider to allow it to perform the Services under this Consultancy Services Order;
(d)
to make timely decisions where approvals or consents are reasonably sought by the Provider in performing the Services under this
Consultancy Services Order;
(e)
to pay the Charges; and
(f)
to use its best efforts to resolve any dispute directly with the Provider before involving the CoE in accordance with clause
13.
6.
Resourcing
Information
6.1
General requirements
The Provider will provide and maintain sufficient resources (including human resources, equipment, telecommunications connectivity, premises
and other facilities) to enable it to perform its obligations on time and otherwise in accordance with this Consultancy Services Order.
6.2
Provider’s Nominated Personnel
(a)
The Participating Agency may, in this Consultancy Services Order, nominate specific Personnel (
Nominated Personnel) to be the primary
providers or to supervise the delivery of the Services.
Official
(b)
If any Nominated Personnel nominated in this Consultancy Services Order are not available to provide or supervise the Services requested,
the Provider must immediately notify the Participating Agency and provide details of other Personnel (if any) with the necessary skills and
experience to provide or supervise the Services requested pursuant to this Consultancy Services Order.
the
(c)
Notice given under claus
e 6.2(b) must specify the period for which the Nominated Personnel will continue to be unavailable.
(d)
Upon receipt of notice under clau
se 6.2(b), the Participating Agency must notify the Provider whether the replacement Personnel are
acceptable. under
(e)
The Participating Agency is under no obligation to accept any replacement Personnel and, if it does not approve the replacement
Personnel, the Provider may not commence or continue providing the Services.
6.3
Personnel
(a)
The Provider will ensure that all of its Personnel who are engaged in the performance of the Provider’s obligations under this Consultancy
Services Order:
(i)
have the requisite skills, expertise, qualifications and experience;
Released
(ii)
have, before performing any such obligations, obtained all security clearances and passed all probity checks required by, or
necessary to provide the Services to, the Participating Agency;
(iii)
comply with all health, safety, security and other policies, codes of conduct, procedures and reasonable directions as may be
reasonably required by the Participating Agency from time to time; and
(iv)
will carry out their respective duties with due care, skill and diligence.
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(b)
The Participating Agency will notify the Provider of any security clearances and probity checks required by, or necessary to provide the
Services to, the Participating Agency.
6.4
Subcontracting
(a)
The Provider will not subcontract the performance of all or part of the Services or any of its other obligations under this Consultancy
Services Order, except with the prior written consent of the Participating Agency.
(b)
The Provider is solely responsible for the selection of each Subcontractor and must ensure that each Subcontractor is creditworthy,
qualified and has the relevant experience to perform the work it is required to carry out for the Provider.
(c)
To the extent permitted by Law, the Provider is and remains fully responsible for any act or omission of any Subcontractor.
(d)
The Provider must ensure that each Subcontract contains obligations on the Subcontractor that are consistent with the relevant terms of
this Consultancy Services Order, including in relation to clause
s 5.1 (Provider responsibilities)
, 6.3(a) (Personnel)
, 10 (Confidentiality)
, 11
(Intellectual Property) a
nd 14 (Termination) and Schedule 3 (Performance Measurement), together with clause 15 (Audit) of the Services
1982
Agreement.
(e)
If, in the Participating Agency’s reasonable opinion, a Subcontractor is:
Act
(i)
materially not performing in accordance with the terms of this Consultancy Services Order, the Participating Agency may, by
notice to the Provider, require the Provider to procure that the Subcontractor performs the relevant obligations within 10
Business Days, failing which the Participating Agency may, by notice to the Provider, require the Provider to remove that
Subcontractor; or
(ii)
a material threat to the health, safety or security of the Personnel or property of the Participating Agency, or has breached
security or confidentiality requirements of this Consultancy Services Order, the Participating Agency may, by notice to the
Provider, require the Provider to remove that Subcontractor, and the Provider will ensure the immediate removal of that
Subcontractor
7.
Changes
Information
7.1
Change procedure
The Participating Agency may agree any variations to this Consultancy Services Order with the Provider using Part C of the Consultancy Services
Order.
8.
Price and payment
8.1
Calculation of Charges
Official
The Charges will be calculated in accordance with the terms of Schedule 2 (Pricing).
8.2
Participating Agency to pay for Services
(a)
The Participating Agency will pay the Provider the Charges applicable to any Services procured by the Participating Agency on the terms of
the
this claus
e 8.
(b)
The Charges and Administration Fee comprise the total amount payable by the Participating Agency for the Services.
8.3
Invoicing and payment
under
Except as otherwise provided in Schedule 2 (Pricing) or as agreed with the Participating Agency in this Consultancy Services Order, the Provider will
invoice the Participating Agency (or, if the Participating Agency has instructed the Provider in writing, the third party agent) for the Charges and the
Participating Agency will pay those Charges, in accordance with the following terms:
(a)
the Provider will render one itemised invoice to the Participating Agency at the end of each month during the Term for all Services
performed during that month specifying (as applicable):
(i)
the nature and amount of the Fees or other applicable fees and fee structures;
(ii)
the Personnel and their applicable Rate;
Released
(iii)
the hours billed (by Personnel and in the aggregate);
(iv)
the nature and amount of any Expenses (including any third party charges to be passed on to the Participating Agency);
(v)
if applicable, the amount representing the Administration Fee;
(vi)
how much of the Estimate or Quote has been used;
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(vii)
a brief description of the Services provided during that month; and
(viii)
any other matters the Participating Agency may reasonably request;
(b)
each correctly rendered invoice will be payable on or before the 20th day of the month following the month in which the invoice was
received;
(a)
the Participating Agency will have no obligation to pay any Charges which are invoiced more than 90 days after the date that such amount
was required to be invoiced pursuant to this clau
se 8.3; and
(b)
the Provider may only invoice the Participating Agency for any Expenses at the cost actually incurred by the Provider.
8.4
Invoice disputes
If the Participating Agency or the Provider disputes an invoice:
(a)
it may withhold the disputed sum and, if applicable, associated Administration Fee until the dispute is resolved;
1982
(b)
the dispute will be resolved in accordance with claus
e 13; and
(c)
it will pay the undisputed portion in accordance with clau
se 8.3.
Act
The Provider will not be excused from performing its obligations under this Consultancy Services Order while an invoice is disputed by the
Participating Agency.
8.5
Taxes
(a)
Except for any GST payable by the Participating Agency, any present or future tax, levy, impost, duty, charge, assessment or fee of any
nature (including applicable interest and penalties) payable in connection with this Consultancy Services Order under any Law is to be paid
by the Provider and not passed on to the Participating Agency unless otherwise expressly agreed in writing by the Participating Agency.
(b)
The Participating Agency may deduct from any payment to be made to the Provider any withholding taxes or other deductions that it is
required by Law to make.
8.6
Administration Fee
In relation to the sub-categories for which the Provider has been appointed as a Tier 1 or Tier 2 Provider, the Provider will ensure that each invoice
Information
issued to the Participating Agency for the Charges includes, in addition to the Charges, a separate amount equal to 1% of the Fees (excluding GST)
(the
Administration Fee).
8.7
Suspension of payment
(a)
Without prejudice to any other right or remedy that may be available to the Participating Agency, the Participating Agency may suspend
payment of all or any part of the Charges if the CoE has notified the Provider that the Provider is in Material Breach, until that Material
Breach is remedied.
Official
(b)
If the Material Breach is not capable of remedy the Participating Agency and the Provider agree to treat the Charges as being in dispute
and clau
se 14 will apply.
9.
Warranties
the
9.1
General warranties
Each party represents, warrants and undertakes that:
(a)
it has full power, capacity and authority to execute, deliver and perform its obligations under this Consultancy Services Order;
(b)
it has, and will continue to have, all the necessary consents, permissions, licences and rights to enter into and perform its obligations under
this Consultancy Services Order; and
under
(c)
this Consultancy Services Order constitutes its legal, valid and binding obligations and is enforceable in accordance with its terms.
9.2
Provider’s warranties
The Provider represents, warrants and undertakes that:
(a)
it will perform its obligations under this Consultancy Services Order with due care, skill, promptness and diligence at all times;
(b)
it has, and will have throughout the Term, sufficient Personnel to supply the Services and to perform its other obligations under this
Consultancy Services Order;
(c)
it, and each of its Personnel engaged in the performance of the Services, has, and will have throughout the Term, the necessary expertise
Released
and all necessary governmental, regulatory or other approvals, permissions, consents, licences, qualifications, accreditations and
requirements to provide the Services and perform its other obligations under this Consultancy Services Order;
(d)
it will comply with the requirements of all Laws as they relate to the provision of Services by the Provider;
(e)
the possession or use of any item of Intellectual Property supplied or licensed by it, or the use of any item of Intellectual Property by it to
perform its obligations under this Consultancy Services Order, will not infringe the rights of any third party;
(f)
all Documentation (and any other information or advice supplied by it to the Participating Agency) and any information and data reported
to the CoE will be accurate, complete and (as applicable) Fit for Purpose;
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(g)
there are no existing agreements, undertakings or arrangements which prevent it from entering into this Consultancy Services Order, or
which would impede the performance of its obligations under this Consultancy Services Order, or that it would breach by entering into this
Consultancy Services Order;
(h)
it is not (and nor is any of its Personnel) a party to any litigation, proceedings or disputes which could adversely affect its ability to perform
its obligations under this Consultancy Services Order; and
(i)
it has not offered any inducement in connection with the entering into or negotiation of this Consultancy Services Order, and will not offer
any inducement in connection with the supply of Services to the Participating Agency.
9.3
Continuous application
The warranties, representations and undertakings set out in clau
se 9.2 will be deemed to be given by the Provider continuously throughout the
Term.
9.4
Notification
Each party will promptly notify the other if at any time during the Term it breaches any of the warranties, representations and undertakings in this
clau
se 9.
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9.5
Other warranties excluded
All warranties (statutory, express or implied) which are not expressly referred to in this Consultancy Services Order are excluded to the fullest
extent permitted by Law.
Act
10.
Confidentiality
10.1
Protection of Confidential Information
(a)
Subject to clause
s 10.1(c) and 10.2, the Provider and the Participating Agency will treat as confidential and not disclose to any third party
nor use for its own benefit any Confidential Information that is the Confidential Information of the other.
(b)
The Provider will:
(i)
ensure that all Confidential Information of the Participating Agency (and any backup archives containing such Confidential
Information) in the possession or control of the Provider from time to time is kept secure and managed and protected and only
disclosed or otherwise dealt with in accordance with this Consultancy Services Order;
(ii)
not use any Agency Information for its own purposes or for any purposes different from those contemplated by this Consultancy
Information
Services Order; and
(iii)
advise the CoE in writing if any Confidential Information of the Participating Agency will be transferred or stored outside New
Zealand before such information is transferred and will confirm that the requirements of this clause
10.1 will be met while such
Confidential Information is stored outside New Zealand.
(c)
Clau
se 10.1(a) does not prevent the disclosure of Confidential Information:
(i)
if that information was known, or becomes known, to the public through no act or default of the recipient;
Official
(ii)
that the recipient is required by Law or parliamentary practice (including parliamentary questions) to disclose, or to a Select
Committee or to a Minister of the Crown, so long as the recipient provides notice of the required disclosure promptly upon
receipt of notice of the required disclosure (if it is permitted to do so by Law);
the
(iii)
that was lawfully known to the recipient prior to the date it was received;
(iv)
that becomes available to the recipient from a source other than a party to this Consultancy Services Order, provided that the
recipient has no reason to believe such source is itself bound by an obligation of confidence to the person that disclosed that
information or is otherwise prohibited under Law from disclosing such information;
(v)
to any Professional Adviser for the purposes of rendering professional services to a party in relation to this Consultancy Services
under
Order;
(vi)
to the extent that such disclosure is authorised by this Consultancy Services Order; or
(vii)
if such disclosure is approved for release with the consent of the party from whom the Confidential Information is first received.
10.2
Limited disclosure
(a)
The Provider may, subject to clau
se 10.2Error! Reference source not found., disclose the Confidential Information of the
Participating Agency to its Subcontractors, Personnel, Related Entities and Professional Advisers who need to know the same for the sole
purpose of enabling the Provider to perform its obligations and exercise its rights under this Consultancy Services Order.
(b)
The Participating Agency may, subject to clau
se 10.2Error! Reference source not found., disclose the Confidential Information of
Released
the Provider to its third party suppliers, Personnel and Professional Advisers and any other Participating Agencies (including the CoE) who
need to know the same in connection with the Services.
(c)
The Provider will not disclose the Participating Agency’s Confidential Information to any of its Subcontractors, Related Entities or
Professional Advisers, and the Participating Agency will not disclose the Provider’s Confidential Information to any of its third party
suppliers or Professional Advisers, unless the recipient has given a written confidentiality undertaking to the disclosing party in terms
substantially similar to those set out in this claus
e 10.
(d)
Any undertaking given pursuant to clau
se 10.2(c) will be provided to the other party to this Consultancy Services Order on request.
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11.
Intellectual Property
11.1
Intellectual Property owned by Provider
(a)
The Participating Agency acknowledges that all:
(i)
Intellectual Property held by the Provider before the Commencement Date;
(ii)
Intellectual Property developed independently from this Consultancy Services Order by the Provider, and that is not developed,
commissioned or created under or in connection with this Consultancy Services Order; and
(iii)
adaptations and modifications to the Intellectual Property described in clause
s 11.1(a)(i) and (ii),
remains the Provider’s sole and exclusive property (
Provider IP).
(b)
To the extent that the Participating Agency needs to use any of the Provider IP to receive the full benefit of the Services, the Provider
grants to the Participating Agency a royalty-free, non-exclusive licence (including, if agreed in this Consultancy Services Order, the right to
sublicense) to use, copy, modify and distribute during the Term any Provider IP provided to the Participating Agency by or on behalf of the
Provider.
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11.2
Intellectual Property owned by Participating Agency
(a)
The Provider acknowledges that the Participating Agency or its licensor has, and continues to have, sole and exclusive ownership of all
Intellectual Property rights in all of the Agency Information together with all adaptations and modifications of such Agency Information
(
Pre-contract Participating Agency IP).
Act
(b)
All Intellectual Property created or developed by the Provider or its employees or Subcontractors in performing the Services and
developing the Documentation will be owned by the Participating Agency from the date the Intellectual Property is created or developed
(
Post-contract Participating Agency IP and, together with the Pre-contract Participating Agency IP, the
Participating Agency IP).
(c)
If the Provider (or any of its Subcontractors) has under any Law any right in or claim to any of the Participating Agency IP or holds any of
the Participating Agency IP, the Provider (by itself and for its Subcontractors):
(i)
assigns to the Participating Agency all of its rights, title and interest in and to the Participating Agency IP from the date it was
created or developed; and
(ii)
waives all right of lien or similar rights as may now or later be claimed in the Participating Agency IP; and
(iii)
waives all of its moral rights under Part 4 of the Copyright Act 1994 in the Participating Agency IP,
Information
and the Provider will sign all documents and do all acts and things that are necessary to give effect to this clause
11.2(c).
(d)
To the extent that the Provider needs to use any of the Participating Agency’s IP for the purpose of performing its obligations under this
Agreement, the Participating Agency grants to the Provider, subject to any written direction given by the Participating Agency, of a royalty-
free, non-exclusive, non-transferable licence to use and store the Participating Agency’s IP for the sole purpose of performing its
obligations under this Consultancy Services Order during the Term.
11.3
Intellectual Property owned by third parties
Official
(a)
To the extent that the Provider needs to use any Intellectual Property held or owned by a third party (
Third Party IP) in performing the
Services under this Consultancy Services Order, the Provider will use its best endeavours to obtain the fullest rights of use and licence of
that Third Party IP (on terms and at a cost to be agreed with the Participating Agency) as are necessary for the performance of those
Services for the benefit of the Participating Agency.
the
(b)
The Participating Agency acknowledges that the Provider may have limited ability to obtain rights and/or a licence to use any Third Party IP
and, where the Provider, using its best endeavours, cannot obtain appropriate rights and/or a licence for the Participating Agency to use
that Third Party IP, the warranty in clau
se 9.2(e) applies.
12.
Liability
under
12.1
Indemnity
(a)
The Provider will, to the extent permitted by Law, indemnify the Participating Agency against all Losses suffered or incurred by the
Participating Agency as a result of any:
(i)
unlawful, malicious or negligent act or omission by the Provider;
(ii)
personal injury, sickness, death or loss of, or damage to, tangible property due to an act or omission of the Provider; or
(iii)
any other breach by the Provider of its obligations under this Consultancy Services Order.
(b)
The Provider will, subject to clau
se 12.1(c), indemnify the Participating Agency against all Losses suffered or incurred by the Participating
Agency as a result of any claim that the possession or use of any Intellectual Property supplied or licensed by the Provider, or the use of
Released
any Intellectual Property used to provide the Services, infringes any third party’s rights.
(c)
The Provider will have no liability under clau
se 12.1(b) to the extent that any IP Claim arises from any:
(i)
modification by the Participating Agency of any item of Intellectual Property supplied or licensed by the Provider without the
approval of the Provider;
(ii)
use by the Participating Agency of Intellectual Property supplied or licensed by the Provider for any purpose disallowed by this
Consultancy Services Order or the applicable Intellectual Property licence (but only if the licence has been provided to the
Participating Agency prior to such use); or
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(iii)
use of Intellectual Property used to provide the Services if and to the extent that Intellectual Property was supplied by the
Participating Agency.
12.2
IP Claims
(a)
In the event of a claim under clau
se 12.1(b) (an
IP Claim):
(i)
the Participating Agency will give the Provider notice of the IP Claim as soon as practicable and, to the extent permissible by Law,
permit the Provider (at the Provider's cost) to handle all negotiations for settlement and to control and direct any litigation that
may follow (
Control of the IP Claim);
(ii)
if the Provider has Control of the IP Claim:
(A)
the Participating Agency will provide all reasonable assistance to the Provider (at the Provider's cost) in the handling of
any negotiations and litigation; and
(B)
the Provider will keep the Participating Agency informed of the defence or negotiations of the IP Claim and diligently
conduct any litigation or negotiations, using competent counsel and in a manner that does not adversely affect the name
or reputation of the Participating Agency;
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(iii)
the Provider will not enter into any settlement or compromise in relation to the IP Claim without the prior written consent of the
Participating Agency (which will not be unreasonably withheld); and
(iv)
the Provider will notify the CoE of the IP Claim, and the outcome within 5 Business Days of the claim being concluded.
Act
(b)
If any IP Claim disrupts the Participating Agency's use or enjoyment of a Service, the Provider will (unless otherwise requested by the CoE),
at its own expense and at its option, immediately:
(i)
obtain for the Participating Agency the legal right to continued use of the infringing materials; or
(ii)
replace, modify or resupply the infringing materials so that there is no further infringement, without adversely affecting the
performance or functionality of those materials.
12.3
Maximum liability of Participating Agency
In addition to its obligation to pay the Charges, the maximum aggregate liability of the Participating Agency to the Provider under or in connection
with this Consultancy Services Order will be, in respect of all Losses, limited to the total Charges paid and payable under this Consultancy Services
Order.
12.4
Maximum liability of the Provider
Information
The maximum liability of the Provider to the Participating Agency for all Losses under or in connection with this Consultancy Services Order in
respect of all claims will not exceed:
(a)
in relation to the sub-categories for which the Provider has been appointed as a Tier 1 Provider, the greater of:
(i)
10 times the total Charges paid and payable under this Consultancy Services Order;
(ii)
$5,000,000; and
Official
(iii)
any greater amount or multiple set out in this Consultancy Services Order;
(b)
in relation to the sub-categories for which the Provider has been appointed as a Tier 2 Provider, the greater of:
the
(i)
10 times the total Charges paid and payable under this Consultancy Services Order;
(ii)
$2,000,000; and
(iii)
any greater amount or multiple set out in this Consultancy Services Order; and
(c)
in relation to the sub-categories for which the Provider has been appointed as a Tier 3 Provider, the greater of:
(i)
10 times the total Charges paid and payable under this Consultancy Services Order;
under
(ii)
$1,000,000; and
(iii)
any greater amount or multiple set out in this Consultancy Services Order.
12.5
No double dipping
A party to this Consultancy Services Order (or the CoE acting on behalf of the Participating Agency in accordance with the Services Agreement)
cannot recover for the same Loss under both this Consultancy Services Order and the Services Agreement.
12.6
Exclusions on liability
The limitations on liability set out in clause
s 12.3 and 12.4 will not limit the liability of:
Released
(a)
the Provider under clause
s 12.1(a) and 12.1(b) (other than in respect of negligent acts or omissions under claus
e 12.1(a)(i) and breach
by the Provider of its obligations under this Consultancy Services Order under clau
se 12.1(a)(iii), which are subject to the limitations of
liability in clause
s 12.3 and 12.4);
(b)
the Provider for any fraudulent act or omission; or
(c)
either party for any breach of confidentiality.
12.7
Categories of loss
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(a)
Irrespective of how liability arises, neither the Provider nor the Participating Agency will, under any circumstances, be liable for any
indirect loss or damage (including consequential loss) arising under or in connection with this Consultancy Services Order.
(b)
The Participating Agency will not, under any circumstances, be liable for any loss of profits or loss of revenue suffered by the Provider in
connection with this Consultancy Services Order.
12.8
Force majeure
(a)
The Provider and the Participating Agency will not be liable to the other for any failure to perform its obligations under this Consultancy
Services Order during the time and to the extent that such performance is prevented, wholly or substantially, by reason of any Force
Majeure Event.
(b)
The party subject to the Force Majeure Event (the
non-performing party) must:
(i)
notify the other party as soon as practicable after the Force Majeure Event occurs and provide full information concerning the
Force Majeure Event, including the extent of its inability to perform, an estimate of the time likely to be required to overcome the
Force Majeure Event and the steps the non-performing party will take to comply with clause
s 12.8(b)(ii) and 12.8(b)(iii);
(ii)
use all reasonable endeavours to mitigate and remedy the effect of the Force Majeure Event and minimise the impact of the
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event on the other party; and
(iii)
use all reasonable endeavours to perform its obligations under this Consultancy Services Order as far as is practicable,
and the Participating Agency will not be required to pay Charges to the extent that the Provider fails to perform its obligations to the
Act
Participating Agency due to a Force Majeure Event.
(c)
If the non-performing party affected by the Force Majeure Event is the Provider, the Participating Agency may, to the extent that any
Service requested by the Participating Agency under this Consultancy Services Order has not been delivered and delivery has, or will be,
delayed by the Force Majeure Event, terminate this Consultancy Services Order, by notice to the Provider within five Business Days
following receipt by the Participating Agency of notice of the Force Majeure Event, at no cost to the Participating Agency, subject to the
Participating Agency paying for Services delivered up to the date of the Force Majeure Event.
12.9
Insurance
(a)
During the Term and for a period of two years following the termination of this Consultancy Services Order, the Provider will, at its own
expense, ensure that it maintains adequate insurance in respect of its potential liability for loss or damage under this Consultancy Services
Order in accordance with Industry Best Practice, but as a minimum the Provider must hold:
(i)
professional indemnity insurance;
Information
(ii)
public liability insurance in respect of the Services provided under this Consultancy Services Order; and
(iii)
other insurance to cover standard commercial risks (including in respect of Documentation which is the property of the
Participating Agency and in the Provider’s possession or control).
(b)
The Provider will, at the Participating Agency’s request, promptly provide satisfactory evidence that it has complied with its obligations in
Official
this claus
e 12.9.
13.
Dispute resolution
the
13.1
Dispute
In the event of any dispute, difference or question arising out of, or in connection with, this Consultancy Services Order or its formation (a
dispute):
(a)
the Participating Agency and the Provider will each use its best efforts to resolve the dispute through good faith negotiations and informal
dispute resolution techniques, and will continue to perform its obligations under this Consultancy Services Order as far as possible as if the
dispute had not arisen, pending final settlement of the dispute; and
under
(b)
neither the Participating Agency nor the Provider will commence any formal proceedings relating to the dispute unless it has complied
with clau
se 13.2.
13.2
Escalation
(a)
The Participating Agency and the Provider will each advise its respective Representative (or equivalent person) of a dispute on the day that
the dispute arises.
(b)
The Representatives will use their best efforts to resolve the dispute in accordance with clause
13.1(a).
(c)
If the dispute is not resolved:
Released
(i)
within 10 Business Days, the dispute will be escalated to senior representatives of the Provider and the Participating Agency with
delegated authority to resolve the dispute; and
(ii)
in relation to the sub-categories for which the Provider has been appointed as a Tier 1 and Tier 2 Provider, within a further 10
Business Days, the dispute will be escalated to the CoE’s Manager, All-of-Government Contracts and the Provider’s Chief
Executive.
13.3
Mediation
(a)
If a dispute is not resolved under clau
se 13.2, either party may, by written notice to the other, refer the dispute to mediation, or they may
agree in writing to refer the dispute to mediation.
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(b)
The mediation will be conducted by a single mediator in accordance with the terms of the Resolution Institute Standard Mediation
Agreement and at a fee to be agreed by the parties.
(c)
If the parties fail to agree on the identity of the mediator and/or the mediator’s fee within five Business Days of referral of the dispute to
mediation, the mediator will be chosen, and the mediator’s fee determined, by the chairperson for the time being of Resolution Institute
(or his or her nominee).
13.4
Urgent relief
(a)
Nothing in this clau
se 13 will preclude either party from taking immediate steps to seek urgent relief before a New Zealand court.
14.
Termination
14.1
Termination of Consultancy Services Order
The Participating Agency may terminate this Consultancy Services Order:
(a)
for convenience by giving the Provider at least one month’s prior written notice;
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(b)
by notice to the Provider with immediate effect on the date of termination specified in that notice, if the Provider commits a Material
Breach which is:
(i)
not capable of being remedied (and, for the avoidance of doubt, paragraphs (a) and (b) of the definition of “Material Breach” are
deemed incapable of being remedied); or
Act
(ii)
capable of being remedied but which is not remedied to the satisfaction of the Participating Agency within 10 Business Days
following the date of receipt by the Provider of the Participating Agency’s notice of the Material Breach;
(c)
in accordance with claus
e 4.1(e) (Conflict of Interest); or
(d)
in accordance with claus
e 12.8(c) (Force Majeure Event).
14.2
Consequences of termination or expiry
(a)
In the event of termination or expiry of this Consultancy Services Order, the Participating Agency will not be obliged to make any payment
to the Provider except for any Charges payable for Services supplied pursuant to this Consultancy Services Order before the effective date
of expiry or termination.
Information
(b)
Termination or expiry will not, unless otherwise provided in this Consultancy Services Order, affect:
(i)
any rights and remedies available to either party which have accrued up to and including the date of termination or expiry; and
(ii)
the provisions of this Consultancy Services Order which expressly, or by their nature, survive termination or expiry, including
clause
s 15 (Entire agreement),
10 (Confidentiality)
, 11 (Intellectual Property)
, 12 (Liability)
, 13 (Dispute Resolution)
, 14.2
(Consequences of termination or expiry) a
nd 16 (General) and Schedule 1 (Definitions);
Official
(iii)
the continued application of clauses of the Services Agreement which expressly, or by their nature, are intended to continue to
apply to this Consultancy Services Order after termination or expiry of this Consultancy Services Order, including clauses
1.4 (Precedence) and 15 (Audit).
the
(c)
After expiry or termination of this Consultancy Services Order for any reason, each party will, within five Business Days of receiving notice
from the other party, return all Documentation, Confidential Information or other property belonging to the other party (or destroy such
Confidential Information, if requested), except if such Documentation, Confidential Information or other property is required to be
retained by any Law.
15.
Entire agreement
under
15.1
Entire agreement
(a)
This Consultancy Services Order is intended to be read in conjunction with the Services Agreement. The provisions of the Services
Agreement (not already included in this Consultancy Services Order) which confer rights, obligations or benefits on the parties or the CoE
in respect of this Consultancy Services Order are intended to apply to this Consultancy Services Order.
(b)
Subject to clau
se 15.1(a), no other terms or conditions, including any conditions of sale, invoices or any other communication not
included in this Consultancy Services Order (
Communication), will be incorporated into this Consultancy Services Order, even if at some
later date the other party (including, in the case of the Participating Agency) signs or otherwise purports to accept those terms and
conditions or the terms of that Communication.
(c)
Released
For the avoidance of doubt, and without limiting clause
s 15.1(a) and 15.1(b):
(i)
any Communication which is expressed or intended to operate as an indemnity, warranty, representation, undertaking, condition
or other term of such a nature is hereby disapplied and excluded from this Consultancy Services Order; and
(ii)
any part of this Consultancy Services Order which describes the nature, scope, price or manner of delivery of Services will, subject
to clau
se 15.1(c)(i), form part of this Consultancy Services Order, but only to the extent that it does not conflict with any other
part of this Consultancy Services Order.
16.
General
16.1
Interpretation
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The rules of interpretation set out in clause 19.1 of the Services Agreement apply to this Consultancy Services Order.
16.2
Relationship of the parties
Nothing expressed or implied in this Consultancy Services Order will be deemed to constitute either party as the partner, agent, or joint venturer of
the other party.
16.3
Costs
A party who has an obligation to do anything under this Consultancy Services Order will perform that obligation at its own cost, unless a term of
this Consultancy Services Order expressly provides otherwise.
16.4
Assignment
Neither party may assign, novate, transfer or otherwise dispose of the whole or any part of its rights and obligations under this Consultancy
Services Order without first obtaining the other party’s consent (which will not be unreasonably withheld or delayed).
16.5
Public disclosures
Subject to clau
se 10, all public disclosures by the Provider relating to this Consultancy Services Order, including the fact of its existence (but not
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including any announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements),
will be co-ordinated with, and must first be approved in writing by, the Participating Agency prior to release.
16.6
Notices
Act
(a)
Unless otherwise specified in this Consultancy Services Order, each notice or other communication under this Consultancy Services Order
will be made in writing and delivered by post, personal delivery or email to the addressee at the addressee’s postal address, physical
address or email address (as applicable) and marked for the attention of the person or office holder (if any) from time to time designated
for that purpose by the addressee.
(b)
The Provider’s postal address, physical address and email address is set out in the Provider Database and may be amended by the Provider
at any time.
(c)
The Participating Agency’s postal address, physical address and email address is as notified by the Participating Agency to the Provider and
may be amended by the Participating Agency at any time.
(d)
A notice or other communication will be deemed to be received:
(i)
in the case of a letter sent to the addressee’s postal address, on the third Business Day after posting;
Information
(ii)
in the case of personal delivery, on receipt; and
(iii)
in the case of an email, at the time the email leaves the communications system of the sender, provided that the sender:
(A)
does not receive any error message relating to the sending of the email at the time of sending; and
(B)
has obtained confirmation that the email has been delivered to the recipient (which confirmation may be in the form of
an automated delivery receipt from the communications system of the recipient),
on the Business Day on which it is dispatched or, if dispatched after 5 p.m. (in the place of receipt), on the next Business Day after
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the date of dispatch.
16.7
Severability
If any term or provision of this Consultancy Services Order is held to be illegal, invalid or unenforceable it will be severed from this Consultancy
the
Services Order without affecting the legality, validity or enforceability of the remaining provisions.
16.8
Waiver
(a)
Neither party will be deemed to have waived any right under this Consultancy Services Order unless the waiver is in writing and signed by
the parties.
(b)
Any failure or delay by a party to exercise any right or power under this Consultancy Services Order will not operate as a waiver of that
under
right or power.
(c)
Any waiver by a party of any breach, or failure to exercise any right, under this Consultancy Services Order will not constitute a waiver of
any subsequent breach or continuing right.
16.9
Remedies cumulative
Except as is expressly stated otherwise in this Consultancy Services Order:
(a)
the rights, powers and remedies provided in this Consultancy Services Order are cumulative and are not exclusive of any rights, powers or
remedies provided by Law or under this Consultancy Services Order; and
(b)
Released
the exercise of any rights, powers and remedies provided in this Consultancy Services Order will not prejudice the exercise of any other
right, power or remedy under this Consultancy Services Order or existing at Law.
16.10
Counterparts
This Consultancy Services Order may be signed in two counterparts, each of which will be deemed an original, but both of which together are to
constitute a single instrument.
16.11
Governing law and jurisdiction
(a)
This Consultancy Services Order is governed by, and will be construed in accordance with, the laws of New Zealand.
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(b)
Subject to clau
se 13, each party irrevocably submits to the exclusive jurisdiction of the New Zealand courts for the purpose of hearing and
determining any dispute under, or in connection with, this Agreement.
SCHEDULE 1: DEFINITIONS
In this Consultancy Services Order, unless the context otherwise requires:
Administration Fee means the amount referred to in clau
se 8.6;
Agency Information means all:
(a)
information and records belonging to the Participating Agency that are supplied to or collected by the Provider for the purpose of enabling the Provider to
perform its obligations under this Consultancy Services Order;
(b)
compilations of data created by a Participating Agency or the Provider for the purposes of this Consultancy Services Order; and
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(c)
legal names, logos, trademarks, brands or images of the Participating Agency, including all related Intellectual Property of the Participating Agency and the
New Zealand Coat of Arms or any other coat of arms or emblem used by the Participating Agency,
but excluding the Provider’s working papers;
Act
Annexure means any document physically attached to a Schedule and identified as such and any other document incorporated by reference in any part of this
Consultancy Services Order (other than an Annexure);
Appointment Letter means the letter issued to the Provider by the CoE, as amended or reissued from time to time, confirming (among other things) the
Provider’s appointment as an All-of-Government provider of consultancy services and detailing the terms and conditions of the appointment (including the
Services and the applicable Tier(s));
Business Day means any day of the year other than a Saturday, a Sunday or a public holiday (as defined in section 44 of the Holidays Act 2003) observed at the
location of the Participating Agency;
Charges means the amount payable by Participating Agencies for Services and includes Fees and Expenses, as described in Schedule 2 (Pricing) and agreed in this
Consultancy Services Order;
Information
CoE means the Ministry of Business, Innovation and Employment, the Centre of Expertise for Consultancy Services;
Commencement Date is the date on which this Consultancy Services Order is signed by both parties or, if two dates, the later date;
Confidential Information means:
(a)
all information and trade secrets already communicated or subsequently communicated under or in connection with this Consultancy Services Order,
including information obtained during the negotiation of this Consultancy Services Order or in the performance of this Consultancy Services Order and
information on the Provider Database;
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(b)
any information about the business or property of either party including any information:
(i)
relating to the financial position of that party;
(ii)
concerning that party’s suppliers and customers; or
the
(iii)
relating to that party’s internal management, structure, Personnel or strategies;
(c)
the terms of this Consultancy Services Order; and
(d)
Agency Information;
Conflict of Interest means any matter, circumstance, interest or activity of the Provider, its Personnel or Subcontractors, arising by whatever means that directly
under
or indirectly conflicts with:
(a)
the duties of the Provider and any of its Personnel or Subcontractors to the Participating Agency; or
(b)
the interests of the Participating Agency in relation to this Consultancy Services Order or otherwise in respect to the provision of consultancy services to
the Participating Agency either before or after the Commencement Date;
or otherwise impairs or might appear to impair the ability of the Provider (or any of its Personnel or Subcontractors) to provide the Services to the Participating
Agency under this Consultancy Services Order diligently, independently, impartially and in the best interests of the Participating Agency;
Consultancy Services Order means this service order relating to the supply of Services issued by the Participating Agency;
Contract Quarter means a period of three consecutive months commencing on 1 January, 1 April, 1 July or 1 October;
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Control means, in relation to the Provider or any ultimate or intermediate holding company or Holding Entity of the Provider, the power to:
(a)
manage, directly or indirectly, the operation of the business; or
(b)
control, directly or indirectly, the composition of the board of directors or board of management or equivalent governing body,
of the Provider or such ultimate or intermediate holding company or Holding Entity, whether through the ownership of voting securities, by contract or
otherwise, and for these purposes “holding company” will have the same meaning as in section 5 of the Companies Act 1993;
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Documentation means all advice, communications, documentation (including information on the Provider Database) and reports (whether in paper, electronic,
audio or audio-visual format) relating to, or provided as part of, the Services together with additions, modifications to, and replacements of, that
documentation, but excludes the Provider’s working papers;
Estimate means an estimate of the total Charges for the Services required by the Participating Agency;
Expense means any actual and reasonable out-of-pocket costs incurred by the Provider in the delivery of the Services and agreed to in this Consultancy Services
Order, and includes any freight and related costs, travelling and incidental expenses and other costs, disbursements, fees, charges and expenses directly or
indirectly incurred by the Provider;
Fees means the amount payable by the Participating Agency to the Provider for its time spent delivering the Services calculated on the basis of the Rates,
excluding Expenses;
Fit for Purpose means, in relation to any Service or Documentation to be provided by the Provider to the Participating Agency, that such Services or
Documentation are, in descending order of priority, fit for the purpose(s):
(a)
expressly made known in writing by the Participating Agency to the Provider (including in this Consultancy Services Order); or
(b)
for which the Provider, given its knowledge of the Participating Agency and understanding why the Services or Documentation are required, has reason to
expect such Services or Documentation to be used;
1982
Force Majeure Event means an event or circumstance beyond the reasonable control of either party which makes it impossible or illegal to perform, or prevents
compliance with, or the performance of, a party’s obligations under this Consultancy Services Order, including:
(a)
fire, floods, tsunami, storms, tempest, earthquake or other act of God;
Act
(b)
any act of a public enemy, war, riot, or act of civil or military authority;
(c)
nuclear, chemical or biological contamination; and
(d)
subject to paragraph (g) of this definition, any act of a third party engaged in subversive or terrorist activity or sabotage,
but does not include an event to the extent that:
(e)
the effect of that event could have been substantially prevented, avoided or overcome or mitigated by:
(i)
implementation of any contracted business continuity or disaster recovery service, or any contingency plans agreed between the parties or which a
party has represented it has in place; or
(ii)
exercising a reasonable standard of care; or
Information
(iii)
using information provided by the other party or which is available in the public domain; or
(f)
it is an event for which the party affected is or was directly responsible; or
(g)
that event is constituted or caused by any act or omission of Personnel or a Subcontractor unless and to the extent that the Personnel or Subcontractor
was itself affected by an event, which if it occurred in relation to either party would have been a Force Majeure Event; or
(h)
that event is constituted or caused by an Insolvency Event or the insolvency of a Subcontractor or lack of funds for any reason;
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GST means goods and services tax under the Goods and Services Tax Act 1985;
Holding Entity means a trust, unit trust, partnership, limited partnership, unincorporated joint venture or other body corporate or unincorporated body of
persons that Controls the Provider, and includes any natural person that Controls the Provider;
the
Industry Best Practice means the high professional standard that would reasonably be expected from a prudent and experienced provider of consultancy
services in New Zealand having regard to market practice at the relevant time;
Insolvency Event means, in relation to the Provider:
(a)
the presentation of an application for its liquidation that is not discharged within 30 days of its filing or which is not demonstrated to the Participating
Agency prior to the expiry of that 30 day period as being an application that is frivolous or vexatious;
under
any step taken in or toward the making of any compromise, proposal or deed of arrangement with all or some of its creditors;
(c)
the appointment of a liquidator, receiver, statutory manager, administrator or similar official, to it;
(d)
the suspension or threatened suspension by it of the payment of its debts;
(e)
cessation by it of a whole or any relevant part of its business in New Zealand;
(f)
the enforcement of any security against the whole or a substantial part of its assets; or
(g)
any other insolvency event or proceedings analogous to any of the foregoing occurring in any relevant jurisdiction;
Intellectual Property means copyright, all rights in relation to inventions (including patents), registered and unregistered trademarks, registered and
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unregistered designs, trade or other proprietary rights or rights derivative of those rights (including licence rights) anywhere in the world as well as any other
rights in intellectual property which are recognised or protected under Law;
Law means:
(a)
any statute, regulation, bylaw, ordinance or subordinate legislation in force from time to time to which a party is subject;
(b)
the common law and the law of equity as applicable to the parties from time to time;
(c)
any binding court order, judgment or decree;
(d)
any applicable industry code of practice or conduct, convention, policy, rule or standard to which a party is bound; or
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(e)
any applicable direction, policy, permission, consent, licence, rule or order that is binding on a party and that is made or given by any governmental or
regulatory body having jurisdiction over a party or any of that party’s assets, resources or business,
in any jurisdiction that is applicable to this Consultancy Services Order;
Losses means liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis);
Material Breach means any material breach by the Provider of the terms of this Consultancy Services Order or the occurrence of any event having a material
effect on the ability of the Provider to perform its obligations under this Consultancy Services Order (other than a Force Majeure Event), including:
(a)
the occurrence of an Insolvency Event in relation to the Provider or the likely occurrence of an Insolvency Event;
(b)
the occurrence of a change in Control of the Provider or any ultimate or intermediate holding company or Holding Entity of the Provider that the CoE has
not previously approved (acting reasonably);
(c)
any representation or warranty made by the Provider in terms of this Consultancy Services Order being found to be untrue or incorrect; and
(d)
any failure on the part of the Provider to comply with, observe or perform any of the terms of this Consultancy Services Order in circumstances where
that contract breach or that contract breach together with other contract breaches is considered by the Participating Agency on reasonable grounds to
cause the Provider to be unable or unwilling, or be likely to be unable or unwilling, to perform its obligations under this Consultancy Services Order;
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Maximum Rates means the maximum Rates payable to the Provider for providing the Services, as recorded in the Provider Database, excluding Expenses;
Panel means the All-of-Government panel of providers who provide consultancy services to Participating Agencies, including any sub-panel, as detailed on
www.procurement.govt.nz;
Act
Participating Agency means the Participating Agency that is a party to this Consultancy Services Order;
Participating Agencies means each of the CoE and every other Eligible Agency that is a party to the memorandum of understanding
between the CoE and all
other Participating Agencies relating to the management of their relationship with each other and with the Provider in relation to the Services, as amended from
time to time;
Personnel includes partners, principals, directors, employees, agents, officers and individual independent contractors;
Professional Adviser means any accounting, legal, procurement or technical professional;
Provider Database means the IT platform described in Schedule 7 (Provider Database) to the Services Agreement;
Quote means a fixed price, capped price or other pre-agreed basis for establishing the Charges for Services required by the Participating Agency where the
Provider is prevented from increasing the Charges without the prior written consent of the Participating Agency;
Information
Rates means the rates (whether hourly, daily or weekly or other time-related basis) payable to the Provider for providing the Services, determined in accordance
with Schedule 2 (Pricing), excluding Expenses;
Related Entity means a related company under the Companies Act 1993 (New Zealand) or a related body corporate under the Corporations Act 200, provided
that any reference in the Companies Act 1993 to a “company” is deemed to include any partnership, body corporate, association or other entity, whether
corporate or unincorporated, irrespective of the place of incorporation or registration of that partnership, body corporate, association or other entity;
Representative has the meaning given in paragraph 3.1 of Schedule 5 (Governance) to the Services Agreement);
Official
Service Level means a required standard for the Provider’s performance of its obligations under this Consultancy Services Order, as described in Schedule 3
(Performance Measurement);
Service Level Default means a failure by the Provider to meet one or more Service Levels;
the
Services means the consultancy services provided from time to time under the terms of this Consultancy Services Order;
Services Agreement means the All-of-Government services agreement relating to the supply of Tier 1 and 2 consultancy services between the CoE and the
Provider;
Subcontractor means any person to whom the Provider has subcontracted any part of its obligations under this Consultancy Services Order or who is a supplier
to the Provider in respect of this Consultancy Services Order and includes the employees and subcontractors of that person and
Subcontract will be construed
under
accordingly;
Term means the period commencing on the date that this Consultancy Services Order is signed by both parties and ending on the earlier of:
(a) the date on which the Services are completed in accordance with this Consultancy Services Order; and
(b)
the date on which this Consultancy Services Order is terminated in accordance with its terms; and
Tiers means any of
Tiers 1 and
Tiers 2 for which members of the Panel are appointed and, in respect of the Provider, means the Tier(s) the Provider is appointed
to as detailed in the Appointment Letter.
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SCHEDULE 2: PRICING
1.
Introduction
This Schedule sets out general principles underlying the Charges.
2.
Principles
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link to page 17
under the Official Information Act 1982
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under the Official Information Act 1982
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