General Terms of Service

Effective 20 April 2023

1. Definitions and Interpretation

1. • The following definitions apply in these Terms:
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     AMINZ means the Arbitrators' and Mediators' Institute of New Zealand Inc., an incorporated society in New Zealand with registered number 379524.
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     Business Day means any day (other than Saturday or Sunday or public holiday, as that term is defined in section 5(1) of the Holidays Act 2003) on which registered banks are open for general banking business in Christchurch, New Zealand.
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     Confidential Information means in relation to a Party, any information:
   • • relating to the business and affairs of that Party;
       
     • relating to the customers, clients, employees, sub-contractors or other persons doing business with that Party;
     • which is by its nature confidential;
     • which is designated as confidential by that Party; or
     • which the other Party knows or ought to know, is confidential,
   • and includes all notes, presentations, work and work strategies, memos, analyses, compilations, studies, reports, valuations and other documents which contain, are developed from or otherwise reflect such material or information.
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     Force Majeure means an event that is beyond the reasonable control of a Party, including (without limitation) any act of God, war, riots, acts of the public enemy, fires, strikes, labour disputes, accidents, or any act in consequence of compliance with any order of any government or governmental authority but excluding an event to the extent that it could have been avoided by either Party taking reasonable steps or reasonable care. For the avoidance of doubt, Force Majeure does not relieve a Party from the obligation to pay any amount owing to the other Party.
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     Good Industry Practice means the exercise of that degree of skill, diligence and prudence that would reasonably be expected from a provider of services in New Zealand that are substantially similar to the Services.
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     GST means goods and services tax within the meaning of the Goods and Services Tax Act 1985.
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     Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, including, without limitation, copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trademarks and designs, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  
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     Letter of Engagement means the letter setting out the specific details of the Services.
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     New Intellectual Property Rights means Intellectual Property Rights developed after the date of our Letter of Engagement and incorporated into the Services.
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     Pre-existing Intellectual Property Rights means Intellectual Property Rights developed before the date of Letter of Engagement.
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     Related Parties means in relation to any Party, that Party’s directors, agents, professional advisors, employees, contracts and permitted sub-contractors.
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     Services means the services to be provided to you in accordance with these Terms and the Letter of Engagement. Terms means these General Terms of Service.
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     We, or our means O’Connor Partners Limited (company number 8320705).  
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     You or your means the person who requests Services from us.
2. • In this agreement, unless the context otherwise requires
   • • references to clauses shall be construed as references to clauses in these Terms;
       
     • a reference to a Party or the Parties includes reference to their respective successors in title and permitted assigns (and where the context so permits) its respective employees, contractors, subcontractors, agents and representatives;
     • words in the singular include the plural and vice versa; and
       
     • any obligation not to do something will be deemed to include an obligation not to suffer, permit or cause that thing to be done and an obligation to do something will be deemed to include an obligation to cause that thing to be done.

2. Application

1. • These Terms apply to our current and future provision of Services to you, except to the extent that the Parties agree otherwise in writing.
2. • You do not need to sign the Letter of Engagement or Terms to accept them. You will be deemed to have accepted the Letter of Engagement and these Terms by continuing to engage us to supply the Services.
3. • If there is any inconsistency or conflict between the meanings or any other provisions of any section of the Terms, Letter of Engagement or any attachments to the Letter of Engagement (if any), then the order of application is as follows:
   • • Letter of Engagement;
       
     • these Terms; and then
     • any attachments to the Letter of Engagement.
       

3. Services

1. • We will provide the Services:
   • • in accordance with Good Industry Practice, our Letter of Engagement and these Terms;
       
     • in accordance with all applicable laws, regulations and orders, insofar as the Services are concerned; and
     • in accordance with any reasonable instructions or directions given by you.
       
2. • During the engagement for Services, the Parties agree to co-operate with each other and act in good faith.
3. • We may engage personnel (including employees, subcontractors or both), who are, in our sole opinion, qualified to perform part of the Services to assist with those parts of the Services. In doing so, we are not required to seek your written consent.
4. • We will report regularly to you on our progress in relation to theServices and as set out in the Letter of Engagement or as otherwise agreed with you in writing.
5. • No advice, material or information provided by us in relation to the provision of the Services is to be used or relied upon, directly or indirectly by any third party, unless you obtain our prior written consent which may be withheld in our discretion.
6. • You are solely responsible for any decision you make in respect of the Services provided by us to you.

4. Fees and Payment

1. • Throughout the provision of the Services, we may incur additional expenses on your behalf (Disbursements).
     
2. • GST is payable by you on our fees and Disbursements.
3. • We will invoice you on a monthly basis or on conclusion of the Services. Our invoices are due for payment by the 20th of the month following the invoice date (Due Date). All payments must be paid electronically to our nominated bank account in cleared funds without any set-off or deduction.
4. • If payment is not made within one month of Due Date, then without prejudice to our other rights we reserve the right to:
   • • charge interest on the outstanding amount at 12% per annum (calculated daily from Due Date) until payment is made;
       
     • charge you collection costs on a solicitor/own client basis; and/or
     • suspend or terminate the provision of Services to you immediately.
       
5. • All fees incurred by us up to the point of either suspension or termination will be and remain payable, notwithstanding the suspension or termination of these Terms and/or the Services.

5. Warranties

1. • Other than as expressly stated in the Terms and/or our Letter of Engagement (or otherwise in writing), we represent, warrant and undertake to you, that:
   • • the Services will, at the time they are provided, materially conform to the requirements set out in the Letter of Engagement and any other agreement between us in writing;
       
     • carrying out the Services will not cause us to breach any obligation we may have to any third party or any other legal obligation relating to the provision of the Services; and
     • we have, and will continue to have, all necessary regulatory approvals, releases, waivers and consents required to enable us to lawfully provide the Services.
       
2. • You represent, warrant and undertake to us, that:
   • • you have informed us of all facts and circumstances that are relevant to the provision of the Services by us as contemplated by the Terms and/or the Letter of Engagement;
       
     • the information you provide us is correct, complete and reliable; and
     • you will not forward the product of our Services to any third party without our prior written consent.
       
3. • Each Party represents warrants and undertakes to the other Party that it has full power, capacity and authority to execute, deliver, and perform its obligations under these Terms.
4. • To the maximum extent permitted by law, the Parties’ respective warranties are limited to those stated in the above subclauses. Any implied condition or warranty is excluded.
5. • You agree and represent that as you are acquiring the Services for the purposes of trade and therefore the Consumer Guarantees Act 1993 does not apply to the supply of the Services. The Parties acknowledge that it is fair and reasonable that the Parties are bound by these Terms and this clause 5.5.
6. • Neither Party has relied on any representation, warranty or agreement relating to the subject matter of these Terms that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect. Without limiting the previous sentence, the Parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and it is fair and reasonable that the Parties are bound by these Terms and this clause 5.6.

6. Intellectual Property

1. • Pre-existing Intellectual Property Rights remain the property of their current owner.
     
2. • From the date of its creation, we own all New Intellectual Property Rights in the Services.
3. • We grant to you and you accept, a non-exclusive, non-transferable, royalty-free and perpetual licence to use, for any purpose related to the Services, the New Intellectual Property Rights and any Pre-existing Intellectual Property Rights in the Services that are not owned by you.
4. • You grant to us, and we accept, a non-exclusive, non-transferable, royalty-free and perpetual licence to use your Pre-existing Intellectual Property Rights for the purposes of providing the Services.
5. • We warrant, undertake and represent to you that neither the supply, receipt or use of the Services nor your possession or use of any deliverable provided as a result of the Services or other information or material supplied under these Terms will infringe the Intellectual Property Rights of any third party.

7. Liability

1. • To the maximum extent permitted bylaw, the total liability of either Party to the other Party/or to any third party in connection with any matter (or series of related matters) under these Terms or in connection with the Services, whether in contract, tort (including negligence) will be limited to the lesser of:
   • • five times the aggregate amount paid by you for the Services in the preceding 12 months; or
       
     • $2,000,000.00.
2. • Neither Party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent the failure is directly caused by the other Party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other Party or its Related Parties.
3. • We will not be liable to any third party in respect of any of our advice or information made available, directly, or indirectly to a third party (whether or not we have provided written consent in accordance with clause5.2(c)). You will indemnify us against any third-party claim arising from release of any such advice or information.
4. • Neither Party will be liable for any loss of profits or any indirect, consequential or special loss or damage arising out of these Terms and/or our provision of the Services.
5. • Each Party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other Party under or in connection with these Terms or provision of the Services.
6. • Each Party (Indemnifying Party) will indemnify the other Party and any of the other Party’s Related Parties against any liability, loss, damage, cost or expense (including legal expenses on a solicitor/client basis) suffered or incurred in connection with any claim, investigation, inquiry or proceeding arising from a breach by the Indemnifying Party of these Terms and/or (where you are the Indemnifying Party) for the unauthorised use of the Services.
7. • If a Party (Liable Party) is found liable to the other Party (Injured Party) and the Injured Party and/or a third party has contributed to the loss or damage, the Liable Party will only be liable strictly to the proportional extent of the Liable Party’s own contribution.

8. Confidentiality

1. • Except as permitted in this clause 8, neither Party will disclose, communicate or distribute to any third party any Confidential Information. We agree to use Confidential Information solely for the purposes of performing the Services.
     
2. • Each Party may disclose Confidential Information to its Related Parties, but only where that Party's Related Parties have agreed in writing to comply with that Party’s confidentiality obligations under this agreement. The Parties agree that they will be wholly responsible for all acts and omissions of their Related Parties concerning any Confidential Information disclosed to them.
3. • A Party will not have to observe the duty of confidentiality concerning Confidential Information that:
   • • the other Party has given prior written consent to the disclosure of;
       
     • is required to be disclosed by law or any legislative or regulatory authority in any competent jurisdiction that has jurisdiction over the Party;
     • at the time of disclosure is in, or subsequently enters, the public domain otherwise than by breach of any duty of confidentiality under these Terms.
       

9. Dispute Resolution

1. • The Parties agree to attempt to settle any disputes arising from or relating to these Terms or the Services in accordance with this clause 9.1 before resorting to external dispute resolution mechanisms, except where the Party seeks urgent interlocutory relief.
     
2. • If the Parties cannot resolve any dispute by negotiation in accordance with clause 9.1 within 15 Business Days then either Party may, by written notice to the other Party, require that the dispute be dealt with by mediation under the following terms:
   • • Mediation Protocol:  The mediation shall be conducted in accordance with the Mediation Protocol of AMINZ then in force (or any protocol or mediation agreement which replaces it).
       
     • Mediator:  The mediation shall be conducted by a mediator and at a fee agreed in writing by the Parties. Failing agreement between the Parties within 10 Business Days of the giving of the notice requiring mediation, the mediator will be selected and his or her fee determined by the chairperson for the time being of AMINZ (or his or her nominee).
     • Location:  The mediation shall take place in Christchurch, New Zealand at such address as determined by the mediator, provided that any Party may, if permitted by the mediator, attend via telephone conference, video conference or any similar means of electronic, audio or audio-visual communication.  
       
     • Settlement:  If the dispute is settled at or following mediation under this clause 9.2, such settlement shall be recorded in writing and be signed by the Parties, whereupon it shall be final and binding on the Parties.
       
     • Costs:  The costs of the mediation, excluding either Parties' own legal and preparation costs, will be shared equally by the Parties
       

10. Termination

1. • Unless the Parties are following the dispute resolution process set out in clause 9, either Party may terminate any engagement for Services for any reason by giving five Business Days’ notice in writing to the other Party.
     
2. • Either Party may terminate any engagement for Services immediately:
   • • by giving the other Party notice in writing if the other Party commits a material breach of these Terms (or the Letter of Engagement) which is either not remediable, or is remediable and the defaulting Party does not remedy that breach within five (5) Business Days of receiving written notice of the breach from the non-defaulting Party; or
       
     • if the other Party becomes insolvent, or subject to the appointment of a receiver, manager, liquidator, or statutory manager, or commits an act of bankruptcy, or makes a scheme of arrangement with its creditors.
3. • Upon termination or expiry of these Terms for any reason whatsoever:
   • • we will stop performing the Services;
       
     • you will pay us all fees and Disbursements owing to us as at the date of termination or expiry (plus any additional costs incurred by us as a result of termination initiated by you); and
     • we will return all property that you have provided to us under or in connection with these Terms and provision of the Services.
4. • Clauses 5 (Warranties), 6 (Intellectual Property), 7 (Liability), 8 (Confidentiality), 10 (Termination)and 14 (General Provisions), survive termination or expiry of these Terms.

11. Force Majeure

1. • We will not be in breach of these Terms if it cannot perform our duties or obligations due to Force Majeure. In the case of a Force Majeure, we will notify you in writing. Such notice will detail:
   • • the nature of the circumstances giving rise to the Force Majeure;
       
     • the extent of our inability to perform under the Terms; and
     • the likely duration of that non-performance,
2. • provided that, to the extent we are able to do so, we will continue to perform our obligations as far as practicable.

12. Health and Safety

1. • The Parties will:
   • • each ensure they comply with their obligations under the Health and Safety at Work Act 2015 (HSWA) and all other relevant health and safety laws; and
       
     • co-operate, consult and co-ordinate, so far as reasonably practicable with each other and any other person who has health and safety obligations in connection with these terms, to enable them to comply with their obligations under the HSWA.

13. Notices

1. • If we are required to give notice to you under these Terms, we may do so by sending that notice to the email address you provided to us when requesting the Services from us. You will be deemed to have received our notice on the Business Day on which it is transmitted or, if transmitted after 5.00pm (in the place of receipt) on the next Business Day after transmission.
     
2. • If you are required to give notice to us under these Terms, you may do so by sending that notice to the email address provided in your Letter ofEngagement.

13. General Provisions

1. • If any term or provision of these Terms is held to be illegal, invalid or unenforceable, it may be severed without affecting the legality, validity or enforceability of the remaining provisions.
     
2. • Each Party agrees to execute, acknowledge and deliver all instruments, make all applications and do all things, as may be necessary or appropriate to carry out the purposes and intent of these Terms.
3. • Neither Party will be deemed to have waived any right under these Terms unless the waiver is in writing and signed by the Party. Any failure or delay by a Party to exercise any right or power under these Terms will not operate as a waiver of that right or power. Any waiver by a Party of any breach, or failure to exercise any right, under these Terms will not constitute a waiver of any subsequent breach or continuing right.
4. • We may amend these Terms from time to time by giving you notice in writing. The amended terms will apply to your next instruction or engagement for services. If you do not agree to the amended Terms, we cannot provide the Services for you and you may terminate the Services by providing us with written notice.
5. • Except for as provided in clause 14.4, these Terms may only be amended in writing and signed by both Parties.
6. • Nothing expressed or implied in these Terms will be deemed to constitute either Party as the partner or joint venturer of the other Party, or an employee/employer relationship.
7. • No Party will have the power to incur any obligation on behalf of or incur any liability on the part of the other Party.
8. • These Terms, together with the Letter of Engagement, set out everything agreed by the Parties relating to the Services and supersedes and cancels any previous agreement (whether oral or written) between the Parties in relation to such matters. Nothing in this clause 14.8 operates to limit or exclude any liability for fraud.
9. • Neither Party may assign or transfer any of its rights or obligations under these Terms without the prior written consent of the other Party (which shall not be unreasonably withheld). Despite any approved assignment, subcontract or transfer, you will remain liable for your obligations under these Terms.
10. • These Terms and any other agreement we have with you will be governed by New Zealand law and are subject to the exclusive jurisdiction of the New Zealand courts.