Legal

Terms of Service

1.1 Definitions

In this agreement unless the context otherwise requires:

Business Day means any day other than a Saturday, Sunday, or a statutory public holiday in Auckland.

Start Date means [date].

Default Rate means the rate of interest from time to time payable by Frontline Sales on its commercial overdraft with the bank principally used by Frontline Sales.

Dispute has the meaning in cl 15.1.

End Date means [date].

GST means goods and services tax chargeable, or to which a person may be liable, under the Goods and Services Tax Act 1985.

Intellectual Property means, in respect of any person, all intellectual and industrial property rights and interests (including common law rights and interests) owned or held by that person, or lawfully used by that person, including, without limitation:

(a) patents, trade marks, service marks, copyright, registered designs, trade names, symbols, and logos;

(b) patent applications and applications to register trade marks, service marks and designs; and

(c) formulae, methods, plans, data, drawings, specifications, characteristics, equipment, designs, inventions, discoveries, improvements, know-how, experience, software products, trade secrets, price lists, costings, brochures and other information used by that person.

Related Company has the meaning in Companies Act 1993, s 2(3) (read as if the expression “company” in that subsection included any body corporate, wherever incorporated).

Services means the services described in Schedule 1.

Service Charges means the charges for the provision of Services set out in Schedule 2.

Service Level Indicator (SLI) means each individual standard of performance by Frontline Sales set out in Schedule 3.

Term means the term of this agreement specified in clause 3.

1.2 Interpretation

In this agreement unless the context otherwise requires:

(a) headings are to be ignored in construing this agreement;

(b) the singular includes the plural and vice versa;

(d) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them (whether before or after the date of this agreement);

(e) reference to any document includes reference to that document (and, where applicable, any of its provisions) as amended, novated, supplemented, or replaced from time to time;

(f) reference to a party, person or entity includes:

(i) an individual, partnership, firm, company, body corporate, corporation, association, trust, estate, state, government or any agency thereof, municipal or local authority and any other entity, whether incorporated or not (in each case whether or not having a separate legal personality); and

(ii) an employee, agent, successor, [permitted] assign, executor, administrator and other representative of such party, person or entity;

(g) “written” and “in writing” include any means of reproducing words, figures or symbols in a tangible and visible form;

(h) references to money are to New Zealand dollars;

(i) reference to a section, clause, sub-clause, schedule or a party is a reference to that section, clause, sub-clause, schedule or party in this agreement unless stated otherwise.

(j) “control” includes where one or more persons, directly or indirectly, whether by the legal or beneficial ownership of shares, securities or other equity, the possession of voting power, by contract, trust, or otherwise:

(i) has, or may have, the power to appoint or remove the majority of the members of the governing body of the person concerned;

(ii) controls or has the power, or may have the power, to control the affairs or policies of the person concerned; or

(iii) is in a position to derive more than 50% of the benefit of the existence or activities of the person concerned.

2 Provision of services

Frontline Sales shall throughout the Term provide the Services to the Client on terms set out in this agreement and Schedule 1 as agreed between the parties.

3 Term

3.1 Term

This agreement commences on the Start Date and shall, unless terminated under a provision of this agreement, continue until the End Date.

3.2 Further Term

This agreement may be extended by Frontline Sales, at its sole discretion, on notice in writing for the Further Terms (if any).

4 Standard of performance

In providing the Services, Frontline Sales shall:

(a) provide personnel, processes, and resources required to provide the Services;

(b) comply with any reasonable directions of the Client

(d) keep the Client fully advised of the progress of the Services and changes or possible changes to the scope or timing of the Services;

(e) not damage the reputation of the Client or the goodwill of its customers, suppliers or other parties dealing with the Client;

(f) not damage or adversely affect the business operations or assets of the Client;

(g) comply with all relevant laws and maintain all licences, approvals and permits required in order for it to provide the Services;

(h) without limiting clauses 4(b) to 4(g), exercise that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled, reasonable and experienced operator in the same or similar circumstances, with reference to best standards and practice.

5 Service Charges

5.1 Charges

Subject to clause 6 of this agreement, the Client shall pay to Frontline Sales the Service Charges described in Schedule 2 of this agreement, for Frontline Sales providing the Services.

5.2 GST

The Service Charges do not include any GST. In addition to the Service Charges the Client shall pay Frontline Sales the amount of all GST chargeable on any taxable supply by Frontline Sales under this agreement.

6 Invoicing and payment

6.1 Deposit

Frontline Sales may require the Client to pay a deposit, being an advanced payment for the Services, before Frontline Sales commence work described in this agreement.

6.2 Invoices

Unless agreed in writing otherwise, Frontline Sales shall provide to the Client an invoice for the Service Charges incurred no later than the tenth day of each month, for the work incurred in the proceeding month. Each invoice shall:

(a) contain sufficient information to enable the Client to establish the accuracy of the invoice, including a breakdown of the Service Charges and a description of the Services to which the invoice relates; and

(b) be in the form of a tax invoice for GST purposes.

6.3 Payment

Payment (and any associated expenses and disbursements) is due within 7 days of the date of Frontline Sales invoice except where the parties have agreed in writing that other terms shall apply.

6.4 Disputed invoices

If the Client in good faith disputes the accuracy of any invoice, the Client shall, within ten Business Days after receipt of the invoice, give notice of that fact to Frontline Sales. That notice shall state the basis of the dispute and give relevant supporting details. The Client shall pay the undisputed portion of the invoice and may withhold payment of the portion disputed. If the parties do not resolve the dispute within 5 Business Days of the date of the notice, the dispute shall be determined in accordance with clause 15.

6.5 Interest

If upon resolution of a dispute of the nature referred to in clause 6.4 either party has to make a payment to the other, that party shall pay to the other interest on that payment for the period from the due date for payment of the invoice in question to the date of actual payment, calculated at the Default Rate.

6.6 Default interest

If either party does not pay any amount payable under this agreement on the due date for payment (Due Date) that party shall pay to the other party interest (both before and after judgment) on that amount. That interest:

(a) shall be paid at the rate of 14% per annum;

(b) shall be paid by instalments at intervals of ten Business Days from the Due Date; and

The right of a party to require payment of interest under this clause does not limit any other right or remedy of that party.

7 Service level indicators

7.1 In supplying the Services, Frontline Sales shall aim to meet the Service Level Indicators (SLI’s) agreed between the parties at Schedule 3. If Frontline Sales fail to meet any SLI, it shall promptly provide to the Client details of the reasons for the failure to meet such SLI, together with its proposals to ensure that such failure is remedied and that the next SLI will be achieved on time.

8 Privacy of Information

8.1 Subject to the provisions of Frontline Sales Privacy Policy, the Client authorises Frontline Sales to:

(a) collect, retain and use information about the Client for the purposes of performing the Services;

(b) disclose information about the Client;

(i) to any person who guarantees, or who provides insurance, or who provides any other support, in relation to Frontline Sales providing Services under this agreement; and

(ii) to such persons as may be necessary or desirable to enable Frontline Sales to exercise any power or enforce or attempt to enforce any of its rights, remedies and powers under this agreement.

9 Intellectual property

9.1 Ownership

All Intellectual Property which is owned by, or is proprietary to, a party at the date of this agreement shall remain owned exclusively by that party.

9.2 New property

Any new Intellectual Property which is created as a result of, or in connection with, the provision of the Services, or otherwise in connection with this agreement, shall be jointly owned by Frontline Sales and the Client, and shall not be used by a party for purposes other than this agreement without the written consent of the other party.

9.3 No rights

Nothing in this agreement confers on a party any right or interest in, or licence to use, or permit to be used, any of the other party's Intellectual Property except that Frontline Sales shall have a non-exclusive licence to uses the Client’s Intellectual Property to the extent required to give effect to this agreement. That licence will expire immediately on termination of this agreement.

10 Confidentiality

10.1 Confidentiality Obligation

Subject to clause 10.2, each party shall keep confidential, and make no disclosure of:

(a) the existence and terms of this agreement; and

(b) all information obtained from the other party under this agreement or in the course of negotiations in respect of this agreement,

(together Information).

10.2 Exceptions

Information may be disclosed by a party if:

(a) disclosure is required by law, or necessary to comply with the listing rules of any recognised stock exchange;

(b) disclosure is required under clause 8.1 (b) of this agreement;

(d) that Information already is, or becomes, public knowledge other than as a result of a breach of clause 10.1 by that party; or

(e) disclosure is made to a bona fide financier or potential financier of that party, or to a bona fide purchaser or potential purchaser of all or part of the business of, or the shares in, that party, so long as:

(i) that party has notified the other party of the proposed disclosure; and

(ii) the person to which disclosure is to be made has entered into a confidentiality agreement in a form reasonably acceptable to the other party; or

(f) disclosure is made to a lawyer or accountant for that party.

10.3 Prior notification and consultation

If either party is required by clause 10.2(a) to make a disclosure or announcement, it shall, before doing so:

(a) give to the other party the maximum notice reasonably practicable in the circumstances, specifying the requirement under which it is required to disclose Information, and the precise Information which it is required to disclose;

(b) comply with all reasonable directions by the other party to contest or resist the requirement to disclose Information; and

(c) consult in good faith with the other party with a view to agreeing upon the form and timing of the disclosure or announcement.

11 Limitation of liability

11.1 Except to the extent that the law prevents us from excluding liability, Frontline Sales shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by the Client or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly in connection with the Services.

11.2 The Client shall indemnify Frontline Sales against all liabilities, costs (including costs as between solicitor and client), losses, claims, expenses and demands incurred by us arising out of or incidental to a breach by you of this agreement, and from any third-party claims arising out of or incidental to the Services or Frontline Services performance of the Services.

11.3 To the extent that Frontline Services are liable for any reason for any loss suffered or liability incurred by the Client arising from any breach of this agreement or for any other reason, such liability is limited to the amount of the actual Service Charges paid by the Client under this agreement.

12 Termination

Either party may terminate this agreement for any reason by giving not less than 60 days’ notice in writing to the other party.

13 Force majeure

13.1 Excusable delay

Neither party shall be liable for any failure or delay in complying with any obligation imposed on that party under this agreement if:

(a) the failure or delay arises directly from an event or circumstance reasonably beyond that party's control and not arising from the fault or insolvency of that party (Event). The following are included as, but not limited to, events or circumstances reasonably beyond a party's control:

(i) act of God;

(ii) earthquake, flood, fire, storm and adverse weather conditions or natural events for which provision could not reasonably have been made;

(iii) interruption or failure of any utility services, or unpredictable delays which could not reasonably be prevented in delivery of materials, equipment or services necessary for the compliance by that party with an obligation under this agreement;

(iv) sabotage, riot, civil disturbance, explosion, terrorist acts, insurrection, epidemic, national emergency (whether in fact or law) or act of war (whether declared or not);

(v) act or omission of any authority not directly or indirectly arising from any act or omission by that party, its agents, representatives or advisors;

(vi) governmental restraint, sanction, expropriation, prohibition, intervention, direction or embargo;

(vii) strike, lockout, work stoppage or other labour hindrance; and

(viii) that party complies with clause 13.2.

13.2 Notice

A party which wishes to rely on clause 13.1 shall:

(a) give the other party written notice as soon as possible but within 2 Business Days after becoming aware of the Event or likelihood of the Event, providing details of the nature, expected duration and effect of the Event, and keep the other party informed of any changes in the nature of the cause and of the cessation of the Event; and

(b) use its reasonable endeavours to:

(i) mitigate the effects of the Event on that party's obligations under this agreement; and

(ii) perform that party's obligations under this agreement within the time specified by this agreement despite the Event.

13.3 Exceptions

Clause 13.1 does not excuse a party from any obligation to make a payment when due under this agreement.

13.4 Cancellation

If a party is unable to comply with any obligation imposed on it under this agreement as a result of an Event for ten consecutive Business Days either party may cancel this agreement by giving written notice to the other party. Cancellation of this agreement under this clause shall not prejudice the rights of either party against the other party in respect of any matter or thing occurring under this agreement prior to cancellation.

13.5 Consequential loss

Frontline Sales shall not be liable to the Client for any loss of profits, or any consequential, indirect or special loss or damages suffered by the Client, arising directly or indirectly from any breach by Frontline Sales of this agreement or from any negligence or other act or omission of Frontline Sales.

14 Termination for breach

14.1 Default

If in respect of either party:

(a) that party breaches, or fails to properly or promptly perform, any obligation of that party under this agreement and fails to remedy the breach or perform the obligation to the other party's reasonable satisfaction within ten Business Days after receiving notice from the other party specifying the breach or failure and requiring remedy;

(b) that party ceases to carry on all or substantially all of its business or operations; or

(i) is, becomes, or is deemed to be, unable to pay its debts, insolvent or bankrupt;

(ii) makes an assignment for the benefit of, or enters into or makes any arrangement or compromise with, its creditors generally; or

(iii) goes into receivership or voluntary administration or has a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property; or

(d) anything analogous to an event in clause 14.1(c) occurs in respect of that party; or

(e) any resolution is passed, or any proceeding is commenced, for the dissolution of that party;

the other party may, by notice to that party, terminate this agreement.

14.2 Effect of Termination

End or termination of this agreement:

(a) is without prejudice to any other right, power or remedy under this agreement, at law, or otherwise, that either party has in respect of a default by the other party;

(b) shall not terminate clauses, which shall continue in force notwithstanding end or termination.

15 Dispute resolution

15.1 In the event of a dispute arising over the interpretation or implementation of this agreement or anything contained herein:

(a) that party will promptly give full written particulars of the dispute to the other; and

(b) the parties will promptly meet and in good faith try to resolve the dispute.

15.2 If the dispute is not resolved within 7 days of written particulars being given, or any longer period agreed to by the parties, the parties agree to submit to mediation. A mediator will be appointed between the parties and failing such agreement the parties agree to appointment of a mediator recommended by the Frontline Sales lawyers.

16 Assignment and subcontracting

16.1 Assignment

Neither party shall directly or indirectly assign, transfer or otherwise dispose of any of its rights or interests in, or any of its obligations or liabilities under, or in connection with, this agreement except with the prior consent of the other party, which consent shall not be unreasonably or arbitrarily withheld or delayed.

16.2 Subcontracting

Frontline Sales shall not subcontract the performance of the Services or any other obligation of Frontline Sales under this agreement except with the prior consent of the Client which consent shall not be unreasonably or arbitrarily withheld or delayed.

17 Notices

17.1 Notice

Every notice or other communication (Notice) for the purposes of this agreement shall:

(a) be in writing; and

(b) be delivered in accordance with clause 17.2.

17.2 Method of service

A Notice may be given by:

(a) delivery to the physical address of the relevant party; or

(b) posting it by pre-paid post to the postal address of the relevant party; or

17.3 Time of receipt

A Notice given in the manner:

(a) specified in clause 17.2(a) is deemed received at the time of delivery;

(b) specified in clause 17.2(b) is deemed received three Business Days after (but exclusive of) the date of posting;

(i) if sent between the hours of 9 am and 5 pm (local time) on a local working day, at the time of transmission; or

(ii) if clause 17.3(c)(i) does not apply, at 9 am (local time) on the local working day most immediately after the time of sending.

For this purpose “local time” is the time in the place of receipt of the Notice, and a “local working day” is a normal working day in that place.

17.4 Addresses

For the purposes of this clause the address details of each party are:

(a) the details set out below; or

(b) such other details as any party may notify to the others by Notice given in accordance with this clause.

Frontline Sales:

6 Ross View Terrace, Dinsdale, Hamilton

The Client:

TBC

18 General

18.1 Amendments

(a) amendment to this agreement;

(b) agreement between the parties for the purpose of, or referred to in, this agreement;

is effective unless it is in writing and signed (if clauses 18.1(a) or 18.1(b) apply) by both parties or (if cl 18.1(c) applies) the party required to give the consent or approval.

18.2 Costs

Each party shall pay its own costs in respect of entry into and negotiation of this agreement.

18.3 Counterparts

This agreement may be signed in any number of counterparts, including facsimile or scanned PDF copies, all of which will together constitute one and the same instrument and a binding and enforceable agreement between the parties.

18.4 Entire agreement

This agreement constitutes the entire agreement between the parties relating to the subject matter of this agreement and supersedes and cancels any previous agreement, understanding or arrangement whether written or oral.

18.5 Further assurance

Each party shall make all applications, execute all documents and do or procure all other acts and things necessary to implement and to carry out its obligations under, and the intention of, this agreement.

18.6 No partnership, joint venture

Nothing in this agreement shall create or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and a party may not make, or allow to be made, any representation that any such relationship exists between the parties. A party shall not have authority to act for, or to incur any obligation on behalf of the other party, except as expressly provided for in this agreement.

18.7 Severance

If any provision of this agreement is or becomes unenforceable, illegal or invalid for any reason it shall be deemed to be severed from this agreement without affecting the validity of the remainder of this agreement and shall not affect the enforceability, legality, validity or application of any other provision of this agreement.

18.8 Waiver

No failure or forbearance by a party to exercise, or delay in exercising, (in whole or in part) any right, power or remedy under, or in connection with, this agreement shall operate as a waiver of that right, power or remedy. A waiver of any breach of any provision of this agreement shall not be effective unless that waiver is in writing and is signed by the party against whom that waiver is claimed. A waiver of any breach shall not be, or be deemed to be, a waiver of any other or subsequent breach.

18.9 Governing law

This agreement is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of this agreement.

If you have any questions about these Terms, please contact us at maclain@frontlinesales.co.nz

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