General Terms and Conditions
Section A: Background, Agreement, and Key Terms
1.0 Background and Agreement
1.1 LIVEWIRE HR has expertise in human resources, health and safety services.
1.2 On the terms of this Agreement, CUSTOMER has agreed to appoint LIVEWIRE HR to provide, and CUSTOMER has agreed to accept from LIVEWIRE HR, the Services.
1.3 The Agreement comprises Section A (Background, Agreement and Key Terms) and Section B (General Terms).
2.0 Key Terms
Human resource (HR) services which may include the following:
- Review of current documents
- Employment relations
- Employment agreements or contractor agreements
- Job Descriptions
- Company Handbook
- Application forms
- Health and safety
- Performance measures & management
Any other HR requirements of the Customer.
Consulting Fees: Where we provide Human Resource services on an hourly rate basis, the cost to you will calculated based on the applicable hourly rate of $189.00 plus GST, the time taken to complete the work, and any other relevant factors to the Human Resources & Health and Safety services provided. The hourly rates reflect the experience and qualifications of our staff and contractors.
Our hourly rates are subject to review and may increase periodically. Time spent by us on your behalf is recorded in 15-minute units, with time rounded up to the next unit, and may include time spent on the following tasks:
1.1. Telephone calls;
1.3. Considering and/or researching the law and facts on the matter;
1.4. Reading/reviewing incoming documents;
1.5. Preparing documents;
1.6. Attendance at meeting with you and on your behalf;
1.7. Travel; and/or
1.8. Completing file notes following any communication and meetings
We will invoice you either once a job has been completed or on the 31st of each month, with payment due within 14 days following the invoice. Any overdue amounts will incur interest at a rate of 10% per month added to the account from the date upon which the payment was due. You will be responsible for any reasonable debt collection costs that we incur in recovering outstanding monies due to us.
Our fees are subject to GST where applicable.
Where appropriate, LIVEWIRE HR may engage legal services on your behalf, to assist in providing services to you. Any charges pertaining to this will be added to your account.
Cloud-based Services: Where we administer your Cloud HR subscription we will charge you a monthly fee of NZD$2.00 per employee.
After the first year your monthly subscription fee may be increased on at least 90 days’ notice by the percentage change in the New Zealand Consumer Price Index (or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by Statistics New Zealand prior to the date of the notice.
If you do not wish to pay the increased subscription, you may terminate this service on no less than 60 days’ notice, provided the notice is received by us before the effective date of the increase. If you do not terminate this service in this way you will be deemed to have accepted the increased Fee.
Commencement Date: The last date appearing on the execution page, being the date both parties have signed the Agreement.
End Date: As per clause 9.1 (b).
Section B: General Terms
3.0 Definitions and Interpretation
Agreement means this Services Agreement, including Section A (Background, Agreement and Key Terms), Section B (General Terms) and any Schedule(s).
Business Day means Monday to Friday inclusive (except for the public holidays listed in sections 44(1)(a)-(j) and 45A of the Holidays Act 2003 (NZ)) in New Zealand.
Cloud HR means the Health and Safety and Human Resources Information System powered by CloudmyStaff Limited that allows Health and Safety and Human Resources processes to occur electronically.
Commencement Date is specified in clause 2 in Section A.
Confidential Information means all information and material (of any nature and in any form or media) which is not in the public domain and which is or was obtained (directly or indirectly, and before, on or after the Commencement Date) by or on behalf of one party from the other party and is by its nature confidential, or the recipient knows, or ought to know, is confidential (including information disclosed orally), and includes the terms of this Agreement.
End Date is specified in clause 2 in Section A, if applicable.
Fees are specified in clause 2 in Section A.
Intellectual Property means:
- inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including products, technology, processes, methods or techniques;
- copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
- trade and service marks (whether registered or unregistered), domain names and business names; and
- any enhancement, modification or derivative work of the Intellectual Property,
but does not include Moral Rights.
Intellectual Property Rights means such rights as may subsist in the Intellectual Property.
Moral Rights means the right:
- to be identified as the author of a work;
- to object to derogatory treatment of a work; and
- not to have authorship of a work falsely attributed.
Officers means a party’s employees, agents, advisers, contractors, nominees and representatives.
Services are specified in clause 2 in Section A.
Special Requirements are specified in clause 2 in Section A.
Third Party means a party that is not a party to this Agreement.
Unexpected Event means any occurrence or event that prevents or delays a party from performing any of its obligations under this Agreement (other than a payment obligation), and that is beyond the reasonable control of that party. This excludes an occurrence or event that could have been avoided by a party taking reasonable steps or care.
a. Headings are for convenience only, and do not affect interpretation.
b. A reference to:
i. legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
ii. a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated;
iii. a party to this Agreement or to any other document or agreement includes a permitted substitute or a permitted assign of that party; and
iv. a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person.
c. A singular word includes the plural, and vice versa.
d. If a word is defined, another part of speech has a corresponding meaning.
e. If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.
f. Unless otherwise specified, a reference to “$” or “dollars” is a reference to New Zealand currency.
g. The word "agreement" includes an undertaking or other binding arrangement or understanding, whether or not in writing.
h. No provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible or not responsible for the preparation of this Agreement or that provision.
4. Provision of Services
4.1 LIVEWIRE HR will provide the Services to the CUSTOMER as specified in clause 2 and taking into account any Special Requirements. LIVEWIRE HR will provide the Services with reasonable care, skill and diligence and in accordance with applicable laws.
4.2 The CUSTOMER must promptly provide LIVEWIRE HR will all information reasonably required by LIVEWIRE HR to provide the Services and provide all approvals reasonably required by LIVEWIRE HR to provide the Services.
4.3 Where the Services include administration of a subscription to Cloud HR the CUSTOMER acknowledges that LIVEWIRE HR is a partner of Cloud HR.
5. Changes to Scope of Services
5.1 If LIVEWIRE HR considers it is unable to meet any milestone date specified in clause 2, LIVEWIRE HR must give notice of the anticipated delay to the CUSTOMER.
5.2 If either party considers that it may be appropriate for:
a. changes to be made to the scope of Services or Special Requirements; or
b. additional Services to be provided by LIVEWIRE HR,
the parties will discuss in good faith amending the Agreement to allow for any such additional Services, including additional Fees, if appropriate.
6. Subcontracting of Services
6.1 Unless otherwise agreed between the parties, LIVEWIRE HR may subcontract LIVEWIRE HR’ rights or obligations under the Agreement as may be required by LIVEWIRE HR to provide the Services.
7.1 The CUSTOMER agrees to pay the Fees.
7.2 Subject to agreement to the contrary in clause 2, the CUSTOMER must pay invoices issued by LIVEWIRE HR within 14 days of the date of the invoice.
7.3 All Fees are exclusive of any taxes (including GST) unless expressly stated otherwise.
7.4 If the CUSTOMER does not pay any invoice in full by the due date, LIVEWIRE HR may:
a. cease provision of the Services;
b. charge the CUSTOMER interest on the overdue amount at a rate of 15% per annum calculated daily; and
c. take action, including instructing a debt collector, to recover the unpaid Fees, together with interest due and costs associated with the recovery.
8. Dispute Resolution
8.1 A party will be in default under this Agreement if that party fails to perform or observe any obligation or term contained or implied in this Agreement (including failure to make any payment of Fees due) to be performed or observed by that party (Defaulting Party).
8.2 If a dispute arises in connection with this Agreement:
a. The dissatisfied party must notify the Defaulting Party in writing, providing reasonable details about the existence and nature of the dispute and setting out the reasons for its dissatisfaction or claim of breach of the Agreement (Dispute Notice).
b. If a Dispute Notice is issued, the parties agree to use reasonable endeavours to settle the dispute.
c. If the dispute remains unresolved 10 Business Days after the receipt of a Dispute Notice (or any other date agreed on in writing between the parties) and the Defaulting Party contests the Dispute Notice, the parties may take whatever action they consider to be appropriate in the circumstances.
8.3 Where, in the reasonable opinion of a party, the other party has breached, or will breach, this Agreement in a manner requiring the urgent intervention of a court, that party maintains the right to seek interlocutory or interim relief without first issuing a Dispute Notice or undertaking negotiations.
8.4 This clause 8 does not limit LIVEWIRE HR’s rights against CUSTOMER under clause 7.4 for any default in payment by CUSTOMER.
9. Term and Termination
9.1 This Agreement commences on the Commencement Date and:
a. if an End Date is specified in clause 2, the Agreement will expire at that date (unless the parties agree in writing to extend the End Date or delete the End Date, in which case clause 9.1(b) would apply); or
b. if no End Date is specified in clause 2, the Agreement will remain in force until terminated by either party under any of clauses 9.2, 9.3 or 9.5.
9.2 Either party may terminate the Agreement for whatever reason upon 60 days prior written notice to the other party.
9.3 Subject to clause 8, where performance or observance of an obligation or term of this Agreement is in dispute, a party may terminate this Agreement immediately by notice in writing to the Defaulting Party if the Defaulting Party:
a. fails to remedy its breach; and/or
b. does not contest the Dispute Notice,
within 10 Business Days (or any other date agreed on in writing between the parties) after receiving a Dispute Notice related to the breach.
9.4 If LIVEWIRE HR exercises its right to terminate for un-remedied breach by CUSTOMER in accordance with the Agreement, LIVEWIRE HR will not be obliged to refund any Fees to CUSTOMER.
9.5 Either party may immediately terminate the Agreement by notice to the other party if the other party:
a. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
b. is unable to perform a material obligation under the Agreement for 25 Business Days or more due to Unexpected Event.
9.6 Upon expiry or termination of the Agreement for any reason:
a. the parties will promptly cease use of, and return to the other party, or otherwise dispose of as the other party may instruct, all manifestations of the other party’s Confidential Information and Intellectual Property in whatever form or media they may exist; and
b. the CUSTOMER agrees to pay for LIVEWIRE HR’ Services up until expiry or the effective date of termination of the Agreement.
9.7 Clauses 7, 8, 10, 11, 12 and 14 expressly survive termination or expiry of this Agreement.
10. Intellectual Property
10.1 Both parties retain ownership of Intellectual Property (regardless of its use in connection with the Services) that:
a. they (or a related Third Party they have contracted with) owned, and that existed, prior to the Commencement Date; or
b. they develop independently of the Agreement and without reference to the other party’s Intellectual Property or Confidential Information.
10.2 Subject to clause 10.1 and 10.3, and upon payment in full of the Fees, CUSTOMER owns new Intellectual Property created or developed by LIVEWIRE HR specifically and solely for the CUSTOMER when providing the Services.
10.3 If the Intellectual Property described in clause 10.2 incorporates Intellectual Property that is considered to be owned by LIVEWIRE HR under clause 10.1 or that is otherwise owned by a Third Party, LIVEWIRE HR grants, or will obtain for the CUSTOMER, a perpetual, non-transferrable and non-exclusive licence to internally use that Intellectual Property within New Zealand for the CUSTOMER’s own business.
11. Confidential Information
11.1 Each party must, unless it has the prior written consent of the other party:
a. maintain the confidentiality of the other party’s Confidential Information;
b. put in place and maintain adequate measures to safeguard Confidential Information of the other party and to prevent unauthorised access or use;
c. use, at a minimum, the same degree of care with respect to its obligations under this Agreement as it employs with respect to its own most highly confidential or proprietary information, but in no event less than reasonable care;
d. not disclose Confidential Information of the other party, except if required by law or if disclosure to its Officers is necessary to carry out that party’s obligations under this Agreement or to enforce the terms of this Agreement, provided that:
i. such Officers are aware of, and comply with, the provisions in this Agreement concerning Confidential Information; and
ii. the party is jointly and severally liable for any breach of this Agreement by its Officers or any other person to whom it discloses any of the Confidential Information;
e. to the extent necessary to comply with the requirements of any stock exchange or applicable law or regulatory request, provided that where consistent with the requirement the party first gives the disclosing party reasonable prior notice of the requirement to disclose, when possible.
11.2 All Confidential Information and any derivations of it, including any Intellectual Property Rights that subsist in any part of the Confidential Information, remain and are the sole and exclusive property of the disclosing party.
11.3 The parties indemnify each other in relation to any loss, damage, costs or expenses that the disclosing party suffers or incurs as a result of any breach of the Confidential Information provisions of this Agreement by the recipient party or Officers of the recipient party.
12.1 Where LIVEWIRE HR collects, holds or uses “personal information” in providing the Services, LIVEWIRE HR will do so in accordance with the Privacy Act 1993 or otherwise upon instruction from the CUSTOMER. LIVEWIRE HR is not liable for, and CUSTOMER indemnifies LIVEWIRE HR in relation to any loss, damage, costs or expenses that LIVEWIRE HR suffers as a result of any breach of the Privacy Act that LIVEWIRE HR commits acting upon instruction from the CUSTOMER.
13. Undertakings and Warranties
13.1 The parties:
a. warrant they have full power and authority to enter into and to perform their obligations under this Agreement which, when signed by both parties, will constitute binding obligations on both parties; and
b. undertake to act reasonably and in good faith with respect to matters that relate to this Agreement.
13.2 LIVEWIRE HR warrants that the Services will, at the time they are
provided, materially comply with the descriptions in clause 2, including any Special Requirements.
14. Liability and Indemnity
14.1 LIVEWIRE HR is not liable or responsible for any information or content (including Intellectual Property or Confidential Information) owned, provided or sourced from the CUSTOMER that LIVEWIRE HR uses when performing the Services.
14.2 To the extent permitted by law, LIVEWIRE HR excludes all implied guarantees, conditions and warranties from the Agreement and provision of Services. The CUSTOMER agrees and represents that it is acquiring Services, and entering the Agreement, for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply to the supply of the Services, or the Agreement.
14.3 Subject to the application of any guarantee, condition, or warranty implied by law that governs this Agreement and cannot be excluded, LIVEWIRE HR excludes all other liability to the CUSTOMER for any costs, expenses, losses and damages suffered or incurred directly or indirectly by CUSTOMER in connection with this Agreement.
14.4 If LIVEWIRE HR is otherwise found to be liable for a breach of this Agreement and liability cannot be entirely excluded, to the fullest extent possible under the law, LIVEWIRE HR limits its liability for any breach to (at LIVEWIRE HR’ election) the re-supply of Services affected by the breach, or payment of an amount equivalent to the Fees paid by CUSTOMER for the relevant Services.
14.5 A party is not liable to the other, and will not be in breach of the Agreement, if that party’s failure to perform its obligations under the Agreement is caused by the other party failing to comply with its obligations under this Agreement, or is caused by the misconduct or negligence of the other party or its Officers. Each party must take reasonable action to mitigate loss or expense it may suffer or incur because of anything done or not done by the other party in connection with the Agreement.
14.6 A party is not liable to the other, and will not be in breach of the Agreement, if that party’s failure to perform its obligations under this Agreement is caused by an Unexpected Event, provided that the affected party:
a. notifies the other party as soon as is reasonably practical about the Unexpected Event;
b. uses its best endeavours to overcome the Unexpected Event; and
c. continues to perform its obligations to the extent that is reasonably practical
15. General Terms
15.1 Notice: A notice given by a party under this Agreement must be delivered to the other party to the email address or physical address of the other party as notified to the party for this purpose.
15.2 Relationship: LIVEWIRE HR is an independent contractor of the CUSTOMER. No other relationship (for example, joint venture, agency, trust or partnership) exists under the Agreement.
15.3 Governing Law: This Agreement is to be governed by and construed in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction and venue of the courts located within New Zealand with respect to any litigation arising out of the breach or enforcement of this Agreement.
15.4 Counterparts: This Agreement may be executed in counterparts by the parties, each of which when so executed will be deemed an original and all of which taken together will constitute one and the same agreement, provided that the Agreement will be of no force and effect until both parties have executed a counterpart.
15.5 Severability: Where any provision of this Agreement is invalid or not enforceable in accordance with its terms, other provisions of the Agreement which are self-sustaining and capable of separate enforcement are, and continue to be, valid and enforceable in accordance with their terms.
15.6 Attorneys: Each person who executes this Agreement on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney.
15.7 Waiver: The waiver by either party of a breach of any provision of this Agreement by the other must not operate or be construed as a waiver of any subsequent breach by the other.
15.8 Assignment: The rights and obligations of the CUSTOMER under this Agreement may not be assigned, transferred or subcontracted without prior written consent from LIVEWIRE HR (which must not be unreasonably withheld), except that should the CUSTOMER be acquired by, or its control otherwise be vested in, another entity, this Agreement will be binding upon the successor entity.
15.9 Entire Agreement: This Agreement constitutes the entire agreement of the parties about the subject matter in this Agreement and supersedes all agreements, representations, and understandings of the parties prior to the date of this Agreement.
15.10 Amendment: This Agreement may only be amended or modified by written agreement between authorised representatives of the parties.