Ideqa – General Terms & Conditions

1 Definitions
a) Words used in this Agreement and the rules of interpretation that apply are set out and explained in clause 14 at the end of these Terms and Conditions.

2 Relationship With Other Parts Of This Agreement
a) The provisions of Part A of this Agreement will prevail over the provisions in this Part of this Agreement to the extent of any inconsistency or conflict.

3 Services
a) Services: IDEQA Limited trading as (“IDEQA”) will provide the Services in accordance with the terms of Part A and otherwise on the terms set out in this Agreement, beginning on the Commencement Date.

b) Standard: IDEQA will perform the Services in a proper and professional manner in accordance with Good Industry Practice and will used all reasonable commercial efforts to:

a. Comply with all performance targets and standards (if any) set out in Part A

b. Comply with all laws relating to the provision of the Services for which it has legal responsibility.

c) Reliance by IDEQA: IDEQA has, in giving any quotation or proposal to the Customer prior to entering into this Agreement and negotiating and entering into this Agreement, relied on information that was provided to IDEQA by the Customer up to the Commencement Date. IDEQA is also relying on the Customer fully performing its obligations under this Agreement. Accordingly, IDEQA’ performance under this Agreement depends on:

a. The Customer promptly performing its responsibilities set out in this Agreement;

b. The Customer, its contractors and their respective personnel cooperating with IDEQA and its personnel in good faith during the term of this Agreement;

c. All information provided to IDEQA by the Customer or its contractors in relation to this Agreement and the Services (including information provided prior to the date of this Agreement) being, and remaining, true and correct; and

d. Any other assumptions set out in Part A of this Agreement being, and remaining, true and correct.
IDEQA will be relieved from relevant obligations under this Agreement to the extent that any of the assumptions in this clause c) is or becomes incorrect.

d) Variations or Additions to Services: If either party becomes aware of any matter that gives rise to a need for a change to the nature or scope, timing or place of delivery or quantity of the Services or the provision of additional services, either party may issue a Variation Request to the other party. IDEQA and the Customer must negotiate in good faith with a view to reaching agreement upon any Variation Request issued under this clause d) within 5 working days of the Variation Request being issued. If the parties are unable to agree upon any Variation Request within that time, IDEQA may elect to:

a. Continue to provide the Services in accordance with this Agreement as if the Variation Request had not been issued;

b. Refer the issue to dispute resolution under clause 12 .

If the parties agree on the Variation Request, then the provisions of this Agreement will apply to the provision of the varied Services and/or additional services (as the case may be).

4 Assistance, Access and Resources

a) Resources: The Customer will provide IDEQA with all reasonable assistance and facilities free of charge (including the Customer Resources and the Means of Access, office facilities, and liaison with the necessary staff of the Customer) in order to permit IDEQA to provide the Services efficiently.

b) Premises: The Customer authorises IDEQA to obtain access to the Premises and the Customer Resources for the purposes of providing the Customer with Services

c) IT Facilities; The Customer will provide IDEQA with access to its IT facilities using the Means of Access, subject to any Restrictions on Access. IDEQA will use its best endeavours not to use the Means of Access to access the Customer’s IT facilities for any purpose other than to provide Services, or in non-compliance with the Restrictions on Access.

5 Reporting And Meetings

a) The Customer will make the Customer Contact available to meet with the IDEQA Contact when reasonably required by IDEQA for the purposes of discussing the status of the Services. The Customer acknowledges that the Customer Contact is authorised to bind the Customer in discussions or negotiations concerning this Agreement. At least once a week, the IDEQA Contact will meet with the Customer Contact (by remote communication facility or in person if necessary) and report to the Customer Contact on the status of the Services.

6 Fees Invoicing And Payment

a) Fees: The fees payable by the Customer to IDEQA for the Services are as set out in Part A. Any additional services requested by the Customer and performed by IDEQA for which no prior agreement has been reached will be charged for by IDEQA at its then-current consulting rates for the personnel concerned.

b) Invoicing: IDEQA will invoice the Customer for fees in accordance with the provisions of Part A. If there are no payment terms contained in Part A IDEQA will invoice the Customer within 5 working days of the end of each month for Services rendered during that month. Each invoice shall contain such information and detail as the Customer reasonably requires to enable the Customer to identify the Services to which it relates.

c) Adjustment Of Fees: If any assumptions referred to in clause c) is inaccurate or becomes incorrect, or there is a change in the scope of the Services that results in a delay in IDEQA providing the Services, IDEQA will not be liable for that delay and will be entitled to charge the Customer for any additional time spent or costs and expenses incurred as a result of the delay or the change in the scope of the Services. Any additional time, costs and expenses will be charged to the Customer at IDEQA then-current consulting rates for such services.

d) Payment: The Customer must pay each invoice by no later than the 20th of the month in which the invoice is received by the Customer unless the Customer has a genuine dispute in relation to the amount of the invoice, in which case the Customer must within 5 working days of receipt of the invoice, refer the amount in dispute to dispute resolution under clause 12 and pay the amount not in dispute. If it is later determined that some or all of the amount in dispute should have been paid to IDEQA, the Customer must within 5 working days of the determination pay the amount finally determined to be payable, together with interest on that amount calculated in accordance with clause f) (a).

e) GST: Unless otherwise expressly indicated in this Agreement, all amounts specified in this Agreement are exclusive of GST, which must be paid by the Customer.

f) Failure To Pay: If the Customer fails to pay any invoice by the due date for payment, then without prejudice to IDEQA rights under this Agreement and at law:

a. Interest is also payable on the outstanding amount at a rate 5% above the 90 day bank bill rate published by IDEQA’s bank from time to time, calculated from the due date to the date of actual payment of the arrears and interest. The Customer must pay that interest at the same time as the outstanding amount; and

b. By written notice to the Customer IDEQA may suspend the provision of any Services or the until the Customer pays the outstanding invoice and interest in full

7 Confidentiality

a) Acknowledgement: Each party acknowledges the confidentiality and proprietary nature of all of the other party’s Confidential Information and that no right, entitlement or interest in that Confidential Information is extended to or conveyed to it other than for the strict purposes contemplated by this Agreement.

b) Undertakings: Each party undertakes and agrees that it will:

a. Only use the other party’s Confidential Information for the purposes contemplated by this Agreement;

b. Not exploit any of the other party’s Confidential Information without that party’s prior written consent;

c. Keep all of the other party’s Confidential Information confidential;

d. Not, without the other party’s prior written consent disclose, publish or make any part of the other party’s Confidential Information known to any person;

e. Not use, or attempt to use, any of the other party’s Confidential Information for its own purposes or the purposes of any third party, or do or omit to do any act or thing involving

the use of that Confidential Information that may injure or cause loss to, or be calculated to injure or cause loss to, the other party without the other party’s prior written consent; and

f. Take reasonable steps to preserve the confidentiality of the other party’s Confidential Information.

c) Exclusions: Clauses a) and b) will not apply to any Confidential Information which:

a. Was at the date the Confidential Information was provided or the Commencement Date was signed (whichever is earlier) in the public domain, or subsequently enters the public domain, through no fault of the other party;

b. The party is obliged by law or the rules of any applicable stock exchange to disclose, provided that she has first advised the other party of this obligation, has allowed the other party reasonable time to avoid the disclosure having to be made, and has given the other party such assistance (at the other party’s cost) as the other party reasonably requests in doing so; or

c. The parties agree in writing will not be governed by the provisions of those clauses

8 Intellectual Property

a) Retention of Ownership: Except to the extent agreed in writing by IDEQA, all Intellectual Property relating to the Services or otherwise provided to the Customer by or on behalf of IDEQA pursuant to this Agreement remains the property of IDEQA or where applicable its licensors.

b) Grant of Licences: Upon payment in full for the Services, IDEQA grants the Customer a non-exclusive and non-transferable perpetual licence to use the Specific IP and all other Intellectual Property supplied by IDEQA in the course of performing the Services in the Territory for the Customer’s own internal business purposes.

c) Right to Copy: IDEQA also grants the Customer the right to copy the Intellectual Property for the purposes of staff and subcontractor education and system backups. However, the Customer must not copy any of the Intellectual Property for any other purposes.

d) Restrictions: The Customer must not in relation to any Intellectual Property supplied by IDEQA under this Agreement:

a. Sell, sublicense or otherwise resupply or communicate to the public any of the Intellectual Property;

b. Sublicense any of its rights granted under this Agreement to any party;

c. Integrate the Intellectual property with any products or services except as expressly required or permitted in this Agreement;

d. Distribute or resell the any of the Intellectual Property to any person, including by supplying access to that Intellectual Property through bureau service processing, without IDEQA’ prior written consent;

e. Except to the extent permitted by law, de-compile, disassemble, decrypt, extract or otherwise reverse engineer any part of any Intellectual Property that is provided to the Customer by or on behalf of IDEQA without IDEQA’ prior written consent.

e) IP Warranty:

a. Warranty: IDEQA warrants to the Customer that to the best of its knowledge, it has the right to grant the licences referred to in clause b) in the Territory. If the Customer becomes aware of any claim or allegation by a third party against the Customer alleging that that an authorised use by the Customer of Intellectual Property provided by IDEQA infringes the Intellectual Property rights (other than any rights relating to or arising from any patent) of that third party, the Customer must:

(I) promptly notify IDEQA in writing giving full particulars of any infringement, suspected infringement or alleged infringement;

(II) give IDEQA the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to or after the institution of legal proceedings;

(III) provide IDEQA with reasonable assistance in conducting the defence of such a claim at no cost to IDEQA;

(IV) permit IDEQA to modify the Intellectual Property or replace components or parts of components, to render the Intellectual Property non-infringing; and

(V) authorise IDEQA to obtain for the Customer’s benefit the authority to continue the use of the Intellectual Property.

b. Action if infringement of Third Party Rights: If an independent tribunal of fact or law determines, or if IDEQA agrees with the other parties to the dispute referred to in clause) (a) that an infringement of third party Intellectual Property rights (other than any rights relating to or arising from any patent) has occurred, IDEQA will:

(I) obtain for the Customer the right to continue using the Intellectual Property; or

(II) at the option of IDEQA, modify the Intellectual Property in order to avoid continuing infringement; or

(III) if the solutions in either of paragraphs (a) or (b) cannot be achieved using reasonable commercial efforts, refund a rateable portion of the fees paid to IDEQA relating to the impacted portion of the Service, as determined by IDEQA, acting reasonably.

c. Exclusions of Liability: IDEQA and its licensors will have no liability under this clause e) with respect to any claim based upon:

(I) the combination of the Intellectual Property with other products or software not supplied by IDEQA or not referred to in Part A as being used in connection with the Intellectual Property;

(II) any addition to, or modification of, the Intellectual Property not created or supplied by IDEQA; or

(III) any claim relating to or arising from any patent, whether in New Zealand, Australia, or elsewhere.

d. IDEQA’s Obligations: This clause e) set out IDEQA’ entire obligation, and the Customer’s sole remedies in respect of any claim that an authorised use by the Customer of Intellectual Property provided by IDEQA infringes the Intellectual Property rights of any party.

9 Liability
a) Exclusion of Warranties: Except for express undertakings to indemnify and any warranties set out in this Agreement, to the extent permitted by the law, IDEQA expressly excludes all conditions and warranties whether express or implied, statutory or otherwise.

b) Limitation – Type of Liability: In no event will IDEQA be liable to any party including the Customer for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including for loss of profits, use, data, or other economic advantage), however it arises, whether for breach of this Agreement or in tort, and even if IDEQA has been previously advised of the possibility of such damage. The Customer will indemnify IDEQA and keep it indemnified from and against any claims by any third party for or in respect of such damages.

c) Limitation – Amount: Subject to clause b), in no event will IDEQA’ total aggregate liability in respect of any and all claims arising under or pursuant to this Agreement exceed the lesser of:

a. The total fees paid to IDEQA under this Agreement for all of the Services; or

b. The total fees paid to IDEQA under this Agreement in the 12 month period prior to the date the liability arose
regardless of whether those claims arise out of a single event or a number of different events.

d) Customer’s Contribution: IDEQA’ liability arising out of or in connection with this Agreement (whether in contract, equity, negligence, tort or for breach of statute or otherwise) will be reduced by the extent (if any) to which the Customer contributed to the loss.

e) Acknowledgement: The Customer agrees that it is acquiring the Services for business purposes and accordingly the provision of the Consumer Guarantees Act 1993 will not apply to the supply of the Services.

10 Agreement Non-Exclusive
a) The Customer acknowledges that IDEQA is providing Services to the Customer on a non-exclusive basis and that IDEQA may provide services of the same or a similar nature as the Services to any other party, provided that in doing so IDEQA does not breach the Confidentiality and Intellectual Property provisions of this Agreement.

11 Term and Termination
a) Commencement: Unless otherwise agreed in writing by the parties, this Agreement will commence on the Commencement Date and, subject to clause b) will continue:

a. Where there is no specific term stated in Part A, until the Services have been completed; or
b. Where there is a specific term stated in Part A, until the end of that term.

b) Termination: This Agreement may be terminated immediately by a party (terminating party) by written notice to the other party (defaulting party) if:

a. the defaulting party is in breach of any material term of this Agreement and;

(I) the breach is not capable of remedy; or

(II) the breach is capable of remedy and the defaulting party fails to remedy the breach within 20 working days of the terminating party notifying the defaulting party in writing of that breach and requiring it to be rectified; or

b. the defaulting party has been given 3 or more notices under clause b) (a) in any rolling 6 month period (regardless of whether or not the breaches have been remedied); or

c. the defaulting party is the Customer and it fails to pay any amount due under this Agreement within 5 working days of the date on which IDEQA gives the Customer written notice of the failure of payment; or

d. on the happening of an Insolvency Event in respect of the defaulting party, and the Insolvency Event remaining in existence in respect of the defaulting party when the notice is delivered.

c) Consequences of Termination: On termination of this Agreement however occurring:

a. IDEQA is entitled to invoice the Customer for services provided but not yet invoiced and all moneys unpaid by the Customer pursuant to this Agreement will immediately become due and payable. If any such moneys remain unpaid for a period of 20 working days then (without prejudice to any other rights that IDEQA may have for breach of this Agreement or otherwise):

(I) the Customer’s right to use the Intellectual Property automatically ceases;

(II) IDEQA will be entitled to retake possession of any Intellectual Property.

b. The parties’ rights and obligations accrued as at the date of termination will not be extinguished or affected.

d) Survival of provisions: The Customer’s obligations under clauses Intellectual Property, Liability, and each party’s obligations under clause Confidentiality, survive the termination of this Agreement for any reason.

12 Dispute Resolution
a) Dispute Resolution Procedure: If a dispute arises in connection with this Agreement:

a. Good Faith Discussions: The relevant representatives from each party must meet and engage in good faith discussions in an attempt to resolve the dispute actively and in good faith. If those discussions fail, that dispute must be referred for discussion between the Managing Directors of each of the parties or a nominee of either of them, who must:
(I) meet within 5 working days of the referral to discuss the matter in good faith; and

(II) use all reasonable endeavours to settle or resolve the dispute within 10 working days of the referral

b. Dispute Notice: Where there is a dispute between the parties which is not resolved under paragraph (a) within 10 working days of the referral a party may give a notice of that dispute to the other party calling for its determination in accordance with the remainder of this clause a)

c. Appointment of Expert: Upon the issue of a Dispute Notice, the parties must arrange for an Expert to be appointed either by agreement or, failing agreement, by the then President for the time being of the New Zealand Law Society or his nominee. The appointment will be final and binding.

d. Submissions: An Expert must be appointed within 10 working days of a Dispute Notice being received by a party. The parties may make written submissions to the Expert and the party making the submissions must give a copy at the same time to the other party.

e. Instructions to Expert: The parties must instruct the Expert to:

(I) determine the dispute;

(II) act as expert and not as arbitrator; and

(III) deliver to the parties a report of his determination within 30 days of his appointment.

(IV) Expert Decision: The Expert’s decision on a matter determined under this 12 is final and binding upon each party.

f. Confidentiality: Any matter the subject of, or related to, a dispute between the parties must be kept confidential.

g. Costs: The Expert may make directions as to payment of the Expert’s costs by one or more of the parties and the parties will comply with the Expert’s directions. In the absence of any direction by the Expert as to payment of the Expert’s costs, the parties will each bear half of the Expert’s costs.

b) Interim Relief: Nothing in clause a) will prevent a party from applying to a Court for injunctive relief.

13 General
a) Entire Agreement: This Agreement contains all of the terms, representations and warranties made between the parties and supersedes all prior discussions and agreements covering the subject matter of this Agreement.

b) Amendments: No amendment of this Agreement will be effective unless it is in writing and signed by both parties.

c) Waiver: No waiver by a party of any breach of this Agreement by the other party will be considered as a waiver of any subsequent breach of the same of any other provision.

d) Force Majeure: A party may suspend its obligations to perform this Agreement if, and to the extent that it is unable to perform such obligations as a direct result of an act of God, fire, wind, floor, riot, war, industrial action or defaults by or other circumstance of a similar nature beyond its reasonable control (force majeure event). Where a party claims a force majeure event has occurred it must give notice to the other party giving all available information in relation to the event and estimating the period of time required to remedy the event and end the suspension. The existence of a force majeure event will not relieve a party of any obligation under this Agreement to the extent that it is not affected by the force majeure event or which related to the period up to the occurrence of the force majeure event. Where a party’s obligations have been suspended pursuant to this clause d) for a period of 20 working days or more, the other party may immediately terminate this Agreement by written notice to the first party.

e) Relationship: This Agreement does not create a relationship of employment, trust, agency or partnership between the parties and IDEQA’ role is that or independent contractor.

f) Assignment: Neither party may novate or assign this Agreement (in whole or in part) without the prior written consent of the other party (which must not be unreasonably withheld). Any change in the effective ownership, management or control of a party (if applicable) will be deemed to be an assignment requiring consent under this clause.

g) Partial Invalidity: If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application will not be affected and will remain in force to the greatest extent permitted by law.

h) Counterparts: This Agreement may be signed in counterpart copies, each of which will be deemed an original and all of which together with constitute one and the same agreement. A party may enter into this Agreement by signing a counterpart copy and sending it to the other party. Each of the parties must promptly sign the original copies of this Agreement after signature of the counterpart copies.

i) Notices: A notice to be given by a party to the other party under this Agreement must:

a. be in writing, and signed by the person authorised by the sender;

b. be addressed to that other party at its address specified at the beginning of this Agreement, or any updated address notified to the party giving the notice; and

c. be left at or sent by post, hand delivery or fax to that address

and will be deemed to be duly given or made:

a. in the case of delivery, on the day of delivery;

b. sent by fax, when the sender’s facsimile system generates a message confirming successful transmission of the entire notice;

c. the case of posting 3 working days after the date of posting;

j) Governing Law: This Agreement will be construed and take effect as a contract made in New Zealand and will be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.

14 Definitions And Interpretation
a) Definitions: In this Agreement:

Commencement Date means the date stated in Part A;
Confidential Information of a party (Owning Party) means information of or relating to the Owning Party, or any Related Company of the Owning Party (including software in source and object code form), relating to the business, operations or affairs of the Owing Party or any Related Company of the Owing Party, including:

a. the corporate or business development or expansion strategy;

b. corporate or business structure;

c. financial, taxation and accounting matters;

d. any relationship or arrangement with any supplier, customer, licensor or agent;

e. inventions, discoveries, trade secrets, know-how, technology, techniques, processes, information, formulae, ideas or concepts, whether or not reduced to material form, drawings, designs, plans, models, and scientific, technical and product information;

f. source and object codes;

g. business and marketing plans and projections;

h. customer information, customer lists and customer information proprietary to customers;

i. agreements and arrangements with third parties, whether legally enforceable or otherwise;

j. computer software; and

k. pricing under this Agreement;

Customer means the party whose details are set out in Part A.

Customer Contact means the person specified in Part A or such other employee of the Customer as the Customer nominates in writing from time to time;

Customer Resources means the computing and office, and the other facilities, materials and resources specified in Part A.

Dispute Notice has the meaning set out in clause a);

Expert means an expert appointed pursuant to clause 12 for the purpose of determining a dispute;

Good Industry Practice means the exercise of that degree of skill and diligence which would reasonably and ordinarily be expected from an experienced operator engaged in the same type of undertaking under the same or similar circumstances.

Insolvency Event means in relation to a party:

a. the party commits an act of insolvency or is unable or is deemed to be unable to pay its debts as and when they fall due; or

b. the party enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of its creditors, or proposes a reorganisation, moratorium or other administration involving it; or

c. the party enters into a debt arrangement or composition with its creditors; or

d. the party goes into liquidation; or

e. a receiver or manager is appointed over the assets of the Customer;

Intellectual Property means any intellectual, industrial or commercial property, including:

a. any copyright

b. any business, trade or commercial name or designation, brand name, logo, symbol, source indication or origin appellation;

c. any Confidential Information;

d. any legal action relating to any previous item;

e. any licence or other right to use, or to become the registered proprietor or user of, any previous item; and

f. any document of title, letters patent, deed of grant or other document or agreement relating to any previous item,
whether registered or unregistered or recorded or unrecorded, stored or incorporated in any medium of any nature or description;

Means of Access means the methods of accessing the Customer’s IT facilities by remote means, as specified in Part A or otherwise agreed in writing from time to time;

Premises means the Customer’s premises specified in Part A, where the Services will be delivered;

Related Company has the meaning given to expression in section 2(3) of the Companies Act 1993;

Restrictions on Access means the restrictions to the Means of Access specified in Part A or otherwise notified to IDEQA by the Customer in writing from time to time;

Services means the services specified in Part A or otherwise as agreed in writing by IDEQA and the Customer from time to time in accordance with this Agreement;

Specific IP means Intellectual Property created by or on behalf of IDEQA solely for the Customer under this Agreement;

Territory means New Zealand;

IDEQA Contact means the person specified in Part A;

Variation means a change to any aspect of the Services arising as a consequence of any of the circumstances described in clause d);

Variation Request means a written request for amendments to the Services or Products under clause d),

Working day means a day excluding a Saturday, Sunday or public or regional holiday or any day within the period from 24 December in any year to 12 January in the following year.

b) Interpretation: In this Agreement unless the context otherwise requires:

a. The singular includes the plural and vice versa;

b. Words importing one gender include any other gender;

c. A reference to a person includes a company and other corporations or bodies of persons (whether incorporated or not);

d. Headings to clauses of this Agreement are for convenience only and will not affect the construction and interpretation of this Agreement.