Terms & Conditions
SUB- CONTRACTOR AGREEMENT
THE PARTIES ACI -
Automation Control Instruments LTD (Company). The contractor as detailed per the Company’s purchase order (Contractor).
TERMS CONTRACTOR DUTIES
The Contractor is being contracted by the Company to deliver services as recorded in each purchase order or orders placed by the Company to the Contractor from time to time where each order shall be carried out and subject to the terms of this agreement (Services). The Contractor agrees to provide all labour, materials, equipment and plant to carry out the Services contemplated under this Agreement (unless otherwise agreed in writing with the Company).
COMPANY DUTIES
The Company will use reasonable endeavours to provide all relevant information, directions, assistance and cooperation as is required for the Contractor to perform the Services in accordance with this agreement. The Company will provide the Contractor with reasonable access to the site during business hours (or at such other times as the parties may agree) to any facilities or support Services required under this agreement.
TYPE OF CONTRACTOR AGREEMENT
The Contractor acknowledges that it is in all respects an independent Contractor and not an employee, partner or subsidiary of the Company and is not entitled to pledge the credit of the Company nor act as its agent, except as expressly authorised by this agreement. The Contractor will be solely liable for all debts, losses, expenses and taxation on the Contractor’s income. The Contractor must manage their own, including persons under their control, KiwiSaver contributions (if any). The Contractor agrees that at no stage either during or subsequently to the term of this agreement will the Contractor claim that the Contractor is or was an employee of the Company.
NON-EXCLUSIVITY
The appointment of the Contractor under this agreement is non-exclusive. It does not restrict the Company’s rights to contract with others for the performance of services identical or similar to the duties and responsibilities of the Contractor under this agreement. date of this agreement shall fall within the scope of the Contractors’ duties and responsibilities under this agreement
PRIOR WORK
Any services performed, or which should have been performed, by the Contractor for the Company before the where the terms and conditions of this agreement will apply accordingly.
PAYMENT OF FEES
The Contractor must submit valid GST invoices to the Company on a monthly basis, unless otherwise agreed or specified in the relevant purchase order. Each invoice must be emailed by the Contractor to the Company.
All invoices must be received by the Company no later than the last working day of the month of the invoice. Multiple invoices are to be batched under one single statement.
Each invoice must specify:
a) The Company’s purchase order number in respect of the Services covered by the invoice;
b) the Services supplied and the dates of supply;
c) details of any variations that have been agreed to and/or carried out by the Contractor during the period;
d) such other information as the Company may reasonably request from time to time; and
e) such information as required to be a valid tax invoice for GST purposes.
In accordance with this agreement, the Company will pay each valid invoice provided by the Contractor no later than the 20th day of the month following the month in which that invoice is dated, unless otherwise agreed or specified in the relevant purchase order.
DEDUCTIONS & SET-OFF
The Company may deduct from amounts otherwise payable to the Contractor any amounts due from the Contractor to the Company or the amount of any claim which the Company may have against the Contractor in connection with the Services or otherwise.
The Company may deduct from the Contractors fee any
amounts required to be deducted by law or which may be
deducted under this agreement.
DISPUTED INVOICES
If any item or part of an item in an invoice is disputed by the Company, the Company will give prompt notice to the Contractor with reasons for disputing such item and will pay
REPORTING
All routine and day to day communications by the Contractor with the Company will, subject to any express contrary provision in this agreement, be directed by the Contractor to the Company, or its authorised representative. The Contractor will at any time reasonably requested by the Company or its authorised representative, ensure that the Contractor meets with the Company’s representative to inspect and review the Services and any matters pertaining to Services and/or the Contractor’s provision of the Services.
The Company’s authorised representative has authority to give the Contractor instructions on the Company’s behalf and may monitor, review, approve, accept, reject or confirm any part, or all, of the Services.
The Contractor must report to the Company in accordance with any specified requirements set out in the purchase order or otherwise mutually agreed between the parties.
TIMELINESS & DELAY
The Contractor must provide the Services in a timely and efficient manner and in accordance with any timetable or as subsequently agreed in writing between the Company and the Contractor.
The Contractor will notify the Company as soon as is reasonably possible on becoming aware of any real or potential delay in providing the Services or any failure to provide the Services. To the extent reasonably practicable, the Contractor will immediately take all necessary actions to reduce the impact of any delay or failure on the Company.
UNIFORM & PROFESSIONAL PRESENTATION
The business requires Contractors to meet personal presentation requirements.
The Contractor agrees to present themselves in line with the Company’s business image and the nature of their role while providing the Services.
MEDIA COMMUNICATION
The Contractor must consider any potential media issues which may arise in relation to the provision of the Services or this agreement, and provide the Company with reasonable notice of any potential media issues.
The Contractor shall not make or be involved in any way in making any public communication in respect of this agreement or the Services at any time to any third party (including to any section of the media) without the prior written approval of the Company, which may be withheld at the Company’s sole discretion.
DISREPUTE
The undisputed portion of the invoice. The Company has no obligation to pay any disputed part of an invoice unless the dispute has been resolved in accordance with the dispute resolution process set out in this agreement and the Company has agreed to pay such amount. The Contractor acknowledges that its activities affect the goodwill and reputation of the Company and agrees to act to promote the goodwill and reputation of the Company. The Contractor must not do anything and ensure that none of its employees, agents, officers or any sub-contracting entity does anything, which brings, or would be likely to bring, the Company in disrepute.
DEFECTIVE SERVICES
Without limiting any other remedy available to the Company, if the Services performed by the Contractor (at the Company’s sole discretion) do not comply with this agreement, the Company may direct the Contractor to rectify the non-compliance at the Contractor’s cost within a reasonable period of time, as notified in that direction.
If the Contractor does not comply with the direction within the period specified, the Company may:
a) acting reasonably, assess the reduction in value of the Services as performed and deduct that amount from the Contractor’s renumeration under this agreement;
b) rectify or engage another person to rectify the defect, deficiency or non-compliance and the cost of this work will be a debt due from the
Contractor to the Company and may be deducted from the Contractors fee; and
c) where the defect, deficiency or non-compliance or its rectification cause the carrying out of abortive work or rework, assess the cost of that work
which cost will be a debt due from the Contractor to the Company and may be deducted from the Contractors fee.
GENERAL WARRANTIES
The Contractor represents and warrants on a continuing basis that:
a) they have received of copy of this agreement;
b) they have read and fully understand the terms and conditions of this agreement;
c) this agreement is valid, binding and enforceable;
d) they have taken all necessary action to authorise the execution and performance of this agreement;
e) they were told about their right to get independent advice on the terms and conditions of this agreement, and have been given time to take
that advice;
f) they have raised any issues they have about the terms and conditions of this agreement and the Company has responded to these issues;
g) they have told the Company about any existing physical and/or health conditions that might be worsened by providing the Services or might
affect their ability to provide the Services;
h) they have been provided with a copy of the Company’s Health & Safety Policy Procedures and agree to abide with these accordingly;
I) no insolvency event has occurred in respect of it;
j) no form of inducement or reward has been or will be directly or indirectly provided by the
Contractor to any of the Company’s employees, agents, officers or representatives in connection with this agreement or the Services;
k) they confirm there are no contractual or other legal reasons that could stop them from working for the Company;
l) the information they have given is true and correct to the best of their knowledge and belief, and they have not left out anything that could affect
the Company’s decision to contract them; and
m) they are (including all persons under their control related to carrying out the Services), and will remain, able to work legally in New Zealand.
SERVICE WARRANTIES
The Contractor represents and warrants on a continuing basis that:
a) it has the requisite skill, judgement, ability, capacity and experience necessary to perform the Services;
b) it has examined, informed and satisfied itself as to the correctness and sufficiency of the Fee, and that except as otherwise expressly provided for
under this agreement, the Fee covers the cost of complying with all the obligations of the Contractor under this agreement.
c) the Services will be reasonably fit for all purposes made known to the Contractor by the Company under this agreement.
d) any goods, equipment or materials provided in connection with the Services will be of merchantable quality and reasonably fit for all purposes
made known to the Contractor by the Company.
e) at all times of carrying out of the Services the Contractor shall have a competent representative physically present on the Site who shall be
authorised and able to take and carry out such instructions as the Company may reasonably give.
f) they shall employ and ensure that its own staff, contractors and persons duly engaged in connection with the Services are only competent
persons.
g) all information, representations, warranties and undertakings made or given by it to the Company (whether before or after the date of This
agreement) are true, complete and accurate in all respects.
h) the Services will be carried out in accordance with all relevant laws and legal requirements (including, but not limited to, statutory
warranties covered in sections of 362I-362K of the Building Act 2004, Plumbers, Gasfitters, and Drainlayers Act 2006, Gas (Safety and
Measurement) Regulations 2010, Electricity Act 1992, Electricity (Safety) Regulations 2010, Resource Management Act 1991, Fire and
Emergency New Zealand Act 2017 and Health and Safety at Work Act 2015).
i) they shall clean-up and properly remove from the site all rubbish and surplus material.
INDEMNITY
The Contractor agrees to indemnify the Company against any losses, costs (including solicitor costs), expenses, demand or liability, whether direct, indirect, consequential, or otherwise, and whether arising in contract, tort (including in each case negligence), or equity or otherwise, incurred as a result of any warranty or representation made to a third party by the Contractor in contravention of its obligations and warranties under this agreement.
INSURANCE
The Contractor must effect and maintain appropriate public liability insurance cover with external and captive underwriters to protect against all reasonable risks in respect of all Services provided. If requested by the Company, the Contractor will provide such confirmation within five (5) working days of such request.
The Contractor will ensure that where any subcontracting entity that is approved under this agreement has insurance in place which is acceptable to the Company (acting reasonably) and to levels of cover as specified in the Schedule (where applicable). If requested by the Company,the Contractor will provide such confirmation within five (5) working days of such request.
HEALTH & SAFETY
The Contractor will follow the Company’s health and safety rules and procedures in accordance with the Health and Safety at Work Act 2015.
The Contractor will take reasonable care to look after their own health and safety at work, their fitness for work, and the health and safety of others.
Examples of how the Contractor can take reasonable care include:
a) following all reasonable health and safety rules and instructions
b) participating in health and safety discussions
c) exercising their right to refuse to do unsafe work
d) taking reasonable care that their actions (or inactions) do not cause harm, or risk of harm, to themselves or others
e) not reporting for duty under the influence of alcohol or drugs that impair their performance or fitness for work
f) wearing all necessary personal protective equipment and clothing.
The Contractor must report any potential risks, incidents and near misses so the Company can investigate, and eliminate or minimise harm or risk of harm.
Failure to follow reasonable health and safety rules may be considered serious misconduct.
CONFIDENTIALITY
The Contractor agrees to keep confidential information private. Except as part of the proper performance of the Services, the Contractor will not directly or indirectly use, copy, share, or permit the use or copying of any confidential information owned by, or in the possession of, the Company
unless they get written permission. Confidential information means all information owned by, or in the possession of, the Company that is not in the public domain, and which the Company reasonably regards as private. It includes, but is not limited to, the Company and the
Company’s customers:
a) commercial agreements
b) trade secrets
c) information about financial affairs
d) business methods and systems
e) information and records about clients, potential clients, suppliers and other contractors
f) business strategies, including merchandising, budgeting, market analysis, pricing, advertising, products and services
g) computer software and data
h) other information not known to the public.
The requirement for confidentiality applies at all times while the Contractor works for this Company, and after this Contractor agreement has ended.
NO IP INFRINGEMENT
The Contractor represents that any intellectual property created or supplied by the Contractor in performance of the Services will not infringe any intellectual property of any person.
The Contractor indemnifies the Company against all claims, demands, actions and proceedings which may be brought or made against the Company by any person for any infringement of intellectual property rights by the Contractor when performing the Services or arising from the use by the Company of any intellectual property created or supplied by the Contractor under this agreement and also from any direct costs or expenses (including legal costs on a solicitor client basis) that may be incurred in connection with any such claims, demands, actions and proceedings.
DUTY TO NOTIFY
The Contractor must notify the Company of any actual, threatened or suspected infringement of the Company’s rights in the intellectual property and of any claim by any third party that such use of intellectual property or information arising from that intellectual property may infringes any rights of any other person, as soon as that infringement or claim comes to the Contractor’s attention. The Contractor shall (at the Company’s expense) do all such things as reasonably be required by the Company to assist the Company in pursuing or defending any proceedings in relation to any such infringement or claim under this agreement.
PERSONS UNDER CONTRACTORS CONTROL
The Contractor must not appoint any of its own subcontracting entities, including the Contractors own staff, contractors and persons, to discharge any of the obligations of the Contractor under this agreement, except with the prior written approval of the Company.
The Contractor will remain responsible for all approved sub-contracted functions, responsibilities and obligations and will be liable for the acts or omissions of any subcontracting entities as if they were acts or omissions of the Contractor. The Company may object to and direct, in writing, the Contractor to remove or have removed from the site within such time as the Company directs anyone employed by the Contractor who the Company believes is behaving badly, or is incompetent or negligent or not accustomed to safe working methods. The Company need not give any warnings beforehand and the Contractor shall comply with such direction.
CONFLICT OF INTEREST
The Contractor agrees that they have disclosed all known potential conflicts of interest. If the Contractor becomes aware of any potential conflict
between their interests and the Company’s business, or an issue with the potential to affect their work performance, they must immediately tell the Company. The Company and Contractor will discuss the issue and work out together whether it is a real conflict of interest. The Contractor must act on any reasonable instructions from the Company about real conflicts of interest. If there is no other reasonable alternative, this Contractor agreement may be ended subject to the termination clauses of this agreement.
ENTIRE AGREEMENT
The terms and conditions set out in this agreement are between the Company and the Contractor, and replace any previous written and verbal agreements.
FURTHER ACTS
Each party at its own expense promptly execute all documents and do or use reasonable endeavours to cause a third party to do all things that another party from time to time may reasonably request in order to give effect to, perfect or complete this agreement and all transactions incidental to it.
NO ASSIGNMENT
The Contractor must not assign or transfer any of its rights or obligations under this agreement without the prior written consent of the Company.
Any contrary attempt by a party to assign its rights under this agreement will be deemed void, and such party shall be liable for any losses or costs of the other parties (including full costs between solicitor and client) caused by the attempted assignment.
If the Contractor is a limited liability Company, it will be deemed to be an assignment if the legal or beneficial ownership of the Contractor changes (having regard to the shareholding in the Contractor at date of this agreement); or effective control of the Contractor changes or passes, transfer or issue of shares or amendment of constitution or in any other way, to a person not having effective control of the Contractor at the date of this agreement.
SEVERABILITY
If any clause no longer applies, e.g., if a court rules it invalid, the rest of the agreement will remain in place. This Contractor agreement will continue as if that clause had not existed. If the relevant Court changes a clause, their version of the clause will be used in this Contractor agreement.
VARIATIONS
The Company and Contractor can agree to change the terms of this agreement at any time. Any changes must be in writing and agreed to by both Company and Contractor.
DISPUTE RESOLUTION
The parties agree to use their best efforts to resolve any dispute that may arise under or in respect of this Agreement through good faith negotiations.
If the parties fail to resolve the dispute within ten (10) working days of an issue having triggered this dispute resolution clause, the dispute will be submitted to a mediator and conducted as follows:
a) The mediator and the mediator’s fee will be that agreed by the parties. If they cannot so agree within ten (10) working days of the referral to
mediation, then the President for the time being of the Arbitrators and Mediators Institute of New Zealand (AMINZ) or his or her nominee will
appoint a mediator and determine the mediator’s fee.
b) Unless the parties agree otherwise, the mediation will be conducted in terms of the Standard Mediation Agreement produced by
LEADR New Zealand Incorporated at the time the dispute is referred to mediation. If no Standard Mediation Agreement is produced by that
organisation at the time of the dispute, themediation will be conducted in a manner determined by the mediator except that the mediation will be
conducted on a without prejudice basis; either party may terminate their involvement in the mediation at any time but only after consultation with
the mediator; any information disclosed during the mediation process will not be disclosed to any person not present at the mediation unless
required by law; and the costs of the mediation will be shared equally by the parties.
Subject to performing mediation as above, a party may refer the dispute to an expert for determination. This will be an expert agreed by the parties, but if they cannot agree then an expert nominated by the New Zealand Dispute Resolution Centre (NZDRC). Subject to the expert’s procedural rules (i.e. Expert Determination in accordance with the Expert Determination Rules of the New Zealand Dispute Resolution Centre), the expert may determine the manner in which the dispute will be heard, a timetable to resolve it, and the expert may award costs to a party. The decision of an expert will be final and binding. The expert is not an arbitrator and the Arbitration Act 1996 will not apply.
Any party may commence court proceedings only when expert determination ceases under the above. Neither party will unreasonably delay the dispute resolution procedure in this agreement.
This dispute resolution section does not apply to an application by either party for urgent interlocutory relief.
TERMINATION
ABANDONING CONTRACT
If the Contractor is away from work for five (5) working days in a row without telling the Company or getting their consent — and the Company has made reasonable efforts to contact the Contractor to clarify the reason for their absence and whether they intend to return to work — the Company may regard this Contractor agreement and the work contemplated by it as abandoned.
The Company may then tell the Contractor that they are deemed to have ended this Contractor agreement. The Contractor will be deemed to have finished at the end of the last day the Contractor worked.
ENDING CONTRACT: SERIOUS MISCONDUCT
If, after following reasonable inquiry, the Company concludes that the Contractor has engaged in serious misconduct, the Company may terminate this agreement without notice.
Serious misconduct is behaviour that fundamentally compromises the Company’s trust and confidence in the Contractor. Serious misconduct includes, but is not limited to:
a) theft
b) sexual or other assault
c) harassment of a work colleague or customer
d) use of illegal drugs at work
e) repeated failure to follow a reasonable instruction
f) deliberate destruction of the Company’s property
g) actions that seriously damage the Company’s reputation
h) a serious breach of the Company’s policies and procedures.
ENDING CONTRACT
The Contractor or the Company will give two (2) weeks notice in writing to terminate this agreement, unless otherwise set out in this agreement. If the Contractor does not give the agreed amount of notice, the Company might be able to claim a breach of this agreement.
Nothing in this clause prevents the Company from ending this Contractor agreement without notice, or payment instead of notice, for serious misconduct or another reason set out in this agreement.
ENDING CONTRACT: DUTIES
Immediately on termination or completion of the Services under this agreement, the Contractor shall, unless otherwise authorised by the Company:
a) immediately return any of the Company’s property and information on or before their final day under this Contractor agreement. This includes, but
is not limited to, any hard and soft copy files, confidential information, IT devices, access cards, keys, vehicles, workplace equipment and any
other property in the possession of the Contractor belonging to the Company. The Contractor must also stop using passwords and codes for the
Company’s systems.
b) not use the trade names logos or any other materials or documentation belonging to the Company or its associated or related businesses;
c) not operate or carry on business under any name or in any matter that may give the general impression that the Contractor is in any way
associated with the Company or its associated/related companies;
d) accept that the Company will not be obliged to make the balance of payments owed under this agreement to the Contractor until the
Contractor has fully complied with its obligations under this clause.
ENDING CONTRACT: SURVIVAL OF TERMS
On termination or expiry of this agreement, any provisions intended to survive termination (including clauses regarding intellectual property, insurance, confidentiality, indemnities and transition services) together with those other provisions of this agreement which are incidental to, and required in order to give effect to those clauses, will remain in full force and effect.
TRANSITION ASSISTANCE
On termination or expiry of this agreement, the Contractor may be required by the Company to provide all reasonable assistance and co-operation to the Company in regards to all matters relating to the transition of the Services to a new Contractor (Transitional Services) for a minimum period of one month.
Where the Company becomes aware that this agreement is due to expire, the Company will, upon at least three (3) months’ notice prior to expiry; or this agreement will be terminated, the Company will, as soon as reasonably practicable, notify the Contractor in writing of the Transitional Services which it requests the Contractor to provide following such expiry or termination (Transitional Services Notice).
On the Contractor’s receipt of a Transitional Services Notice, the Company and the Contractor will meet and discuss the Transitional Services requested by the Company and will use all reasonable endeavours to determine the scope of the Transition Services, the value of any remuneration payable to the Contractor for the provision of the Transitional Services and the manner in which such payment is to be made.
Where the parties agree on the remuneration payable for the Transitional Services, the Company will remunerate the Contractor as agreed, and the Transitional Services and the manner in which such payment is to be made.
SUSPENSION
The Company may decide to suspend the Contractor from carrying out Services in order for the Company to investigate allegations against the Contractor, e.g., for serious misconduct, or if the Contractor poses an immediate risk to themselves and/or others or if the Company reasonably believes the Contractor is likely or is in breach of its services warranties under this agreement.
FORCE MAJEURE
The Contractor understands and agrees that this agreement may end without notice, or payment of notice, if a natural disaster, workplace fire, flood or other similar major event beyond the Company’s control makes it impossible for this agreement to continue. Where practicable, the Company will consult with the Contractor before exercising this clause.
RESTRAINT OF TRADE
The Contractor acknowledges that during the course of carrying out the Services, the Contractor may form relationships with the Company’s clients/customers, staff, suppliers and others with whom the Company has, or is building, a relationship. These relationships are important to the Company’s business.
In recognition of the importance of these factors to the Company — and taking into account the fees payable to the Contractor set out in this Agreement — the Contractor agrees to behave in the way set out in this clause, unless they obtain the Company’s written permission first.
The Contractor shall not, either during the term of this Agreement or for Six (6) months after termination of this Agreement, do the following (directly or indirectly, alone or with any other person):
a) Approach or solicit any of the Company's clients, suppliers or customers, or try to persuade them to end or limit their relationships with the
Company.
a) Approach, employ, engage or otherwise try to take away any of the Company's staff or contractors.
b) Approach the architect, consultants, and/or engineers or their staff in connection with anything concerning the Services without prior consent from
the Company.
INTREPRETATION
In interpreting this agreement, unless a contrary intention is expressed:
a) Headings in this agreement are for reference only and shall not in anyway limit or govern the construction of the provisions of this agreement;
b) References to a party are to a party to this Agreement and include that party’s successors in title and permitted assigns;
c) Words importing the singular (including defined terms where appropriate) shall include the plural and vice versa and words importing
gender shall import all genders;
d) Any provision of this agreement to be performed by two or more persons shall bind those persons jointly and severally;
e) Dollars, NZD or $ mean New Zealand Dollars;
f) Any date which is not a working day, upon or by which anything is due to be done by any party, will be deemed to be a reference to the
next working day;
g) Reference to “including” and its similar expression shall be interpreted as if followed by “without limitation”;
h) References to clauses or schedules are to clauses of or schedule to this agreement, and any schedules referred to form part of this agreement;
and
i) None of the terms of this agreement are to be construed against a party, by reason of the fact that a term or part was first proposed or
was drafted by that party.
j) Any obligation not to do something will be deemed to include an obligation not to suffer, permit or cause that thing to be done.
NOTICES
Any notice or communication given to a party under this agreement is only given if it is in writing and emailed to that party at its email address and marked for the attention of the representative as set out in the relevant purchase order or delivered or posted to that party at its registered address (if any).
If a party gives the other party three (3) working days notice of its change of email or address, any notice or communication is only given by that other party if it is delivered or posted to the latest email or address.
Any notice or communication is to be treated as given at the following time:
a) if it is sent by email, when sent to the email address provided for notices to the relevant party under this agreement;
b) if it is sent by post, two (or in the case of a notice or communication posted to another country, five (5) working days after it is posted. However,
if any notice or communication given on the day that is not a working day, or after 5.00 pm on a working day, in the place of the party to whom
it is sent, it is to be treated as having been given at the beginning of the next working day.
GOVERNING LAW
This agreement is governed by the law of New Zealand. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
COUNTERPARTS
This agreement may be executed in any number of counterparts each of which will be deemed an original and all of which together will constitute a single instrument. Either party may enter into this agreement by signing any counterpart.
JOINT & INDIVIDUAL LIABILITY & BENEFITS
Except as otherwise set out in this agreement, any agreement, covenant, representation or warranty under this agreement by two or more persons binds them jointly and each of them individually, and any benefit in favour of two or more persons is for the benefit of them jointly and each of them individually.
AUTHORISED SIGNATORY
Where a party to this agreement is a Company, the person(s) signing this agreement on behalf of the Company personally, warrants that that person or those persons have the power to enter into and have duly signed this agreement in accordance with the terms of the Companies Act 1933 and/or its constitution.
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