GENERAL TERMS AND CONDITIONS
1. Definitions and Interpretation
1.1 Definitions: In this agreement, unless the context otherwise requires:
Additional Services means services outside the scope of the Services requested by the Client and agreed to by the Service Provider.
Additional Terms means the additional provisions contained in the schedules and any annexures to the Agreement.
Agreement means a contract and includes the schedules (including the Additional Terms) and any annexures or documents or communications incorporated by reference.
Business Day means a day (other than a Saturday, Sunday or a public holiday) on which registered banks are open for business in New Zealand.
Confidential Information means all data and information exchanged between the Service Provider and the Client in connection with any Agreement, but excludes information:
(a) which is in or which subsequently enters the public domain other than as a result of a breach of the Agreement;
(b) known to the recipient on the date of its receipt;
(c) which, at any time, is received in good faith by the recipient from a third party who has lawful possession of such information and a right to disclose the same; and
(d) which is disclosed pursuant to legal requirement or order.
Fees mean the fees payable to the Service Provider for the provision of the Services agreed to.
General Terms and Conditions means the provisions contained in any Agreement, excluding the Additional Terms.
Information Privacy Principles means the information privacy principles set out in the Privacy Act 2020 and any amendments.
Intellectual Property means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Project Intellectual Property means all Intellectual Property created, developed, discovered, brought into existence, or otherwise acquired by the parties, under the Agreement.
Rates means the rates charged on an hourly basis payable to the Service Provider for the provision of the Services.
Term means the period services are to be provided.
Services means the scope of services agreed in any schedules/statements of work/proposals and other documentation.
Service Provider means Perceptive Group Limited
1.2 Interpretation: In these terms , unless the context indicates otherwise:
(a) headings are for ease of reference only and will not affect the agreement's interpretation;
(b) references to a party or a person includes any form of entity and their respective successors, permitted assigns and representatives;
(c) singular includes plural and vice versa;
(d) “includes” means includes without limitation;
(e) amounts are in New Zealand Dollars and exclude every tax and duty; and
(f) each schedule and any annexure or attachment forms part of any Agreement.
1.3 Additional Terms to prevail: If there is any conflict between a provision in the Additional Terms and the General Terms and Conditions, the Additional Terms shall prevail.
2.1 Term: The Agreement will remain in force for the duration of the Project subject to:
(a) earlier termination or expiry in accordance with the provisions of this Agreement; or
(b) any renewal in accordance with the provisions of the Agreement.
2.2 Renewal: Provided that neither party is in default under the Agreement, the Agreement shall be renewed for a further Term at the expiry of each preceding term unless earlier terminated by either party by giving no less than one (1) calendar month prior to the expiry of the then- current term.
3.1 Scope of Services: The Service Provider shall provide the Services described in any agreed schedules/statement of work/proposals or other documentation.
3.2 Quality of Services: The Service Provider shall provide the Services promptly and in accordance with all applicable laws, rules and regulations. Standard of care, skill and diligence that would reasonably be expected from an experienced provider in New Zealand of services that are similar to the Services. The Service Provider is ISO 9001 accredited and a member of the Research Association.
3.3 Inability to provide Services: If, at any time during the Term, the Service Provider is unable or is likely to become unable, for whatever reason, to provide any or all the Services, the Service Provider must immediately notify the Client of that fact.
3.4 Completion of Services: The Client shall grant the Service Provider a reasonable extension of time to complete the Services where completion of any part of the Services is delayed by matters beyond the control of the Service Provider and/or the Client has requested Additional Services. Service Provider must do all things necessary to resume the services and to mitigate the delay.
3.5 Additional Services: Additional Services shall be charged at the Service Provider’s standard Rates, unless specified otherwise.
3.6 Access to Information: The Client shall provide and accommodate, at its cost, any request for data and information reasonably made by the Service Provider necessary for the performance of the Services.
4. Fees and Rates
4.1 Fees and Rates: The Fees and/or Rates payable specified in any schedule/statement of work/proposal or other documentation.
4.2 Payment for Services: Payment of Fees and/or Rates for the Services must be paid in full prior to the commencement of the Project, unless specified otherwise in the Agreement or Schedule and upon receipt of the tax invoice for the Services.
4.3 Invoicing for Additional Services: The Service Provider shall invoice the Client for the Additional Services.
4.4 Payment Terms: The Client shall pay the invoiced amount to the Service Provider by 20thof the month following the invoice date, except where such invoice is provided within 10 days of the 20th of such month, in which case the Client shall pay the invoiced amount to the Service Provider by 20th of the subsequent month following the invoice date.
4.5 Overdue Invoices: The Service Provider will provide the Client with a notice in the event there are any amounts unpaid by the due date of an invoice (Overdue Notice). In the event these overdue invoices are not paid within 10 Business Days of the receipt of any Overdue Notice by the Client, the Client shall, on demand by the Service Provider, 2% above the 90 day bank bill rate per month from the Due Date until the date full payment is received.
5.1 The parties agree to indemnify the other party and each of its officers, employees and agents against any direct loss, damage, claim, action or expense (including actual reasonable legal costs awarded by a court or tribunal) which the indemnified party suffers as a result of any of the following:
(a) inaccuracy of any materials or information supplied by the indemnifying party; and
(b) an infringement of any right of any third party (including any intellectual property rights) or any laws by use of any materials or information supplied by the indemnifying party.
6.1 Without limiting in any way either party’s obligation to indemnify the other in accordance with the terms of the agreement, the maximum aggregate liability of either party to the other for all claims under or in connection with the agreement in respect of any event or series of connected events, in contract, tort ( including negligence), equity, or for breach of any fiduciary or statutory duty, or otherwise shall not in any circumstances exceed the amount actually paid to the Service Provider in the immediately preceding six (6) month period.
7.1 Use of Confidential Information: The parties must use and reproduce Confidential Information only to perform each party’s obligations under the Agreement and neither party shall, without the prior written consent of the other, disclose to any third party or use the Confidential Information for any other purpose.
7.2 Ownership of Confidential Information: Confidential Information will remain the property of the party supplying the Confidential Information (or any part of it) and upon request, the Confidential Information must be returned to the supplying party on termination or expiry of the Agreement.
8.1 The Service Provider acknowledges that it will be bound by the Privacy Act 2020 and the Information Privacy Principles.
9. Intellectual Property
9.1 Intellectual Property Rights: Nothing in the Agreement constitutes a transfer to the other party of any Intellectual Property rights.
9.2 Project Intellectual Property: The Client will own All Project Intellectual Property.
10. Termination Notice
10.1 Termination of Agreement without cause: The Client may terminate this Agreement by giving 30 days notice and paying any amounts already due.
10.2 Termination of Agreement with cause: Either party may at its sole discretion terminate the Agreement and/or suspend for any definite or indefinite period of time provision of the Services and/or payment of Services by giving written notice of termination if:
(a) A dispute resolution process shall be enacted if the Client is in arrears for more than 10 Business Days after non-payment following any Overdue Notice, unless the Client has given written notice within five (5) Business Days of receipt of the invoice that it disputes the invoiced amount;
(b) the Client fails to remedy, to the satisfaction of the Service Provider, any material breach of the Agreement (which in the opinion of the Service Provider is able to be remedied) within 10 Business Days after the date on which the Service Provider issues the Client a written notice requiring the breach to be remedied; The Client has the same rights for the Service Provider breach
(c) the Client breaches any material provision of the Agreement and in the reasonable opinion of the Service Provider such breach cannot be remedied; The Client has the same rights for the Service Provider breach
(d) the Client commits any act or does anything that is contrary to prevailing community standards which bring the reputation of the Client into disrepute and as a consequence the Service Provider believes that its continued association with the Client will be prejudicial or otherwise detrimental to its reputation; The Client has the same rights for the Service Provider breach
(e) the Client enters into liquidation or a receiver is appointed or becomes subject to any form of insolvency administration or arrangement, or in the case of an individual, becomes bankrupt or enters into a scheme or arrangement with creditors. The Client has the same rights for the Service Provider entering the same situation
10.3 Consequences of Termination or Expiry: Termination or expiry of the Agreement will not prejudice any right of action or remedy which may have accrued to either party prior to termination or expiry.
11.1 The Service Provider reserves the right, to work for or accept retainers from other parties which may compete directly or indirectly with the Client’s business.
12.1 Each party warrants that it will not during the term of this Agreement and for a period of six (6) months following termination of this Agreement, directly or indirectly solicit, canvas or entice any employee away from the Service Provider/Client excluding any employees that respond toany publicly advertised employment opportunities.
13.1 No assignment: The Client may not assign or transfer its rights under the Agreement without the prior written consent of the Service Provider
13.2 Legal costs: Each party is responsible for its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under the Agreement.
13.3 Amendment: Any variation to the terms and conditions of the Agreement must be recorded in writing and agreed to by the parties.
13.4 Waiver and exercise of rights: A single or partial exercise or waiver by a party of a right relating to the Agreement does not prevent any other exercise of that right or the exercise of any other right.
13.5 Severability: If any provision of the Agreement is invalid or unenforceable that provision is to be read down, if possible, so as to be valid and enforceable, and, if that is not possible, the provision shall, to the extent that it is capable, be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions.
13.6 Entire Agreement: The Agreement contains the entire understanding between the parties and shall supersede all previous representations, negotiations and commitments whether verbal, in writing or otherwise.
13.7 Relationship of parties: The Agreement is not intended to create a partnership, joint venture or agency relationship between the Client and the Service Provider.
13.8 Force Majeure: Neither party will be liable for any delay or failure in performance of its obligations under the Agreement if the delay or failure is due to any cause outside its reasonable control including force majeure will, act of God and act of Government. The performance of the parties under the is agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Agreement. This clause does not apply to any payment obligations for services already provided prior to a Force Majeure event
14.1 Notices: Any notice given under the Agreement shall be sent by registered post, courier or by email as follows:
(a) to the Client, at the address set out in the Schedule; and
(b) to the Service Provider at the address set out in the Schedule.
14.2 Change of Client’s address: If the Client’s contact details change, it must notify the Service Provider.
14.3 Time of delivery: A notice or document is taken to be delivered or served in accordance with the following:
(a) in the case of delivery in person or by courier, when delivered;
(b) in case of delivery by registered post within New Zealand, two (2) Business Days after the date of posting;
(c) in case of delivery by registered post outside of New Zealand, five (5) Business Days after the date of posting;
(d) in the case of email on the Business Day following the day on which it was sent.
14.4 After hours communication: Any notice or document delivered or deemed to be delivered after 5pm in the place of receipt or on a day other than a Business Day is taken as having been delivered at 9am on the next Business Day.
15. Governing Law
15.1 This Agreement is governed by and is to be construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand for the purpose of hearing and determining all disputes under or in connection with the Agreement.
15.2 Where the Client has its registered offices or principal place of business outside of New Zealand, the Client may in its sole discretion elect to issue or file a claim or proceeding in the courts or tribunals of the overseas jurisdiction, in which case the Agreement shall be governed by the laws of the overseas jurisdiction in which the claim or proceeding is issued or filed and the parties agree to submit to that jurisdiction for determination of disputes arising out of or in connection with the Agreement.
16. Dispute Resolution
16.1 With the exception of the dispute referred to in clause 16.1(e), if any dispute arises between the parties concerning the Agreement, the parties agree that:
(a) they shall negotiate in good faith with the objective of reaching an acceptable commercial solution to the problem;
(b) if such an agreed solution cannot be reached to the satisfaction of both parties within 10 Business Days of the dispute being notified in writing to the other, the parties shall within a further 10 Business Days (or within such further period as they may agree is appropriate) refer the dispute to mediation;
(c) in the event the parties cannot agree on a mediator, a mediator shall be appointed by the President of the New Zealand Law Society (or the equivalent in the jurisdiction nominated in clause 15.2) at the request of either party;
(d) while any such dispute remains unresolved the parties agree to continue the performance of the Agreement to the extent that such performance is possible given the nature of the dispute; and
(e) the preceding dispute resolution procedures do not apply to any dispute in relation to payment of the Service Providers charges for services provided to the Client.
17.1 Clauses 4, 5, 6, 7, 8, 9, 12, 15 and 16 and any other provisions that by the nature or intent of their terms shall survive the termination or expiry of the Agreement.
18. Electronic Signature
18.1 The parties agree that either party may sign or agree to these terms by electronic means. If a party signs this agreement by electronic means, that party represents and warrants to the other party that the form of the electronic signature complies with the requirements set out in section 228 of the Contract and Commercial Law Act 2017.
19. Anti-Bribery and Corruption:
19.1 Each party agrees that it shall comply, at all times, with all applicable anti-bribery and anti-corruption laws and regulations.
ADDITIONAL TERMS - RESEARCH
In respect of the service known as Perceptive Research, the following additional terms shall apply:
1.1 Project means the project specified in any schedules, statements of work, proposals or other documentation.
2. Project Postponement or Cancellation
2.1 Any changes that the Client initiates to the Project timetable may incur a postponement fee payable by the Client. The postponement fee may cover Services provided up to the date of postponement that have not been covered by the agreed Fees schedule, and any costs incurred by the Service Provider due to the postponement or cancellation that are not recoverable. This may include fieldwork costs for quantitative or qualitative projects directly impacted by the postponement or cancellation.
3.1 The Service Provider agrees to comply with the Research Association New Zealand’s Code of Professional Behaviour and the Market Research Privacy Principles when executing the Project.
4.1 Fees for Perceptive Research component of the Services shall be payable as follows:
(a) 50% on commission of the Project;
(b) 50% on delivery of the first presentation or report by the Service Provider; and
(c) For any projects which the Fees are less than $10,000 shall be paid prior to commencement of the Project unless otherwise agreed.
6.1 The Client shall not reproduce, modify, distribute, transmit, republish, display or resell any of the Project Intellectual Property arising from the Perceptive Research services to any third party without the prior written consent of the Service Provider. Notwithstanding the above, the Client may reproduce, modify, distribute, transmit, republish, display or resell any of its own Intellectual Property that may have been incorporated into or otherwise used in the development of the Project Intellectual Property.
ADDITIONAL TERMS - CUSTOMER AND EMPLOYEE MONITOR
In respect of the service known as Customer Monitor and Employee Monitor the following additional terms shall apply:
1. Licence to use the Site
1.1 The Service Provider grants to the Client a non-exclusive and non-transferable limited licence to access and use the Services and access to https://dashboard.customermonitor.com (“Site”) subject to the terms of the Agreement.
1.2 Except for the license granted pursuant to this Agreement, the Client does not acquire any interest in the Site, the Services or any other services or materials provided to the Client by the Service Provider.
1.3 When accessing and using the Services and the Site, the Client must not:
(a) attempt to undermine the security or integrity of computing or network systems of the Service Provider or any third party hosting the Site;
(b) use or misuse the Services in any way which may impair the functionality of the Services or the Site, or other systems used to deliver the Services or the Site or impair the ability of any other user to use the Services or the Site;
(c) attempt to gain unauthorised access to any materials other than those which the Client has been given express permission to access;
(d) reproduce (including photocopying or storage in an information storage/retrieval system), modify, distribute, transmit, republish, display, resell, data extract, or data mine the Site in order to commercially exploit or prepare derivative works based on the Site; and
(e) tamper with, disable, reverse engineer, decompile or otherwise interfere with the proper functioning of the Services or the Site, or any content, proprietary notice, copyright management system or software associated with the Services or the Site including the coding for the Site.
2. Client Data
2.1 Project Intellectual Property in respect of any data input by the Client’s respondents using the Site (“Client Data”) shall be the property of the Client.
2.2 On termination of this Agreement, the Client Data will be made available to the Client for a period of 20 Business Days in the format “as is” provided to the Service Provider which shall then be deleted and/or destroyed.
2.3 Access to and availability of the Client Data is subject to the Client not being in breach of this Agreement.
2.4 The Client grants the Service Provider a licence to use, copy, transmit, store and back-up the Client Data for the purposes of enabling the Client to access and use the Services and for any other purpose related to provision of the Services.
2.5 The Client is responsible for maintaining a copy of the Client Data. The Service Provider adheres to its best practice policies and procedures to prevent data loss, but does warrant that there will be no loss of the Client Data. The Service Provider expressly excludes liability for any loss of the Client Data under any circumstance.
3. Site Availability
3.1 The Service Provider intends that the Services and the Site to be available at all times. However, the Service Provider does not warrant that the availability of the Services and/or the Site will be uninterrupted and the Service Provider will not be held liable for any compensation or damages due to such interruptions in availability of the Services and/or the Site.
3.2 The Service Provider does not warrant that the Services and/or the Site will be error-free and will not be held liable for any compensation or damages due to such error.
4. Changes to the Site and Services
4.1 In the event of a perceived or real cyber attack, or upon identification of new vulnerabilities, the Service Provider may, at any time, without notice:
(a) modify, suspend or terminate operation of or access to the Site and/or Services, or any portion of the Site and/or Services, where for any reason;
(b) modify or change the Site, or any portion of the Site, and any applicable policies or terms;
(c) interrupt the operation of the Site and/or Services, or any portion of the Site and/or Services, as necessary to perform routine or non-routine maintenance, error correction, or other changes; and
(d) revoke or suspend any login or password for the Site.
5. Accounts, Passwords and Security
5.1 Certain features or services offered on or through the Site may require the Client to complete registration (including setting up a Customer Monitor login and password). The Client shall be entirely responsible for maintaining the confidentiality of the login and password and for any and all activity that occurs under the Client’s registration.
5.2 The Client agrees to notify the Service Provider immediately of any unauthorised use of the Client’s login and password, or any other breach of security. Where any breach of security or unauthorised use has occurred, the Client must take all actions the Service Provider reasonably deems necessary to maintain or enhance the security of the Services and the Site including notifying the Service Provider of such breach of security or unauthorised use.
5.3 The Client is liable for any losses incurred by the Service Provider as a result of any breach of security or unauthorised use of the Client’s login and password to the Site.
5.4 The Service Provider will not be held liable for any compensation or damages due to any breach of security or unauthorised use of the Site and/or Services.
6.1 Customer Monitor’s standard term is for 12 months from commencement date.
7. ISMS Policy
7.1 The parties agree to be bound by the PERCEPTIVE GROUP ISMS POLICY .
The Service Provider objective of managing information security is to ensure that its core and supporting business operations continue to operate with minimal disruptions. The Service Provider shall ensure that all information that is disbursed or produced by us has absolute integrity. The Service Provider shall guarantee that all relevant information is managed and stored with appropriate ISO 27001 compliant procedures.
The purpose of the Policy is to protect the Client's information assets from all threats, whether internal or external, deliberate or accidental.
It is the Policy of The Service Provider to ensure that: