OVERVIEW

This Agreement applies whenever any Tribe Technology Limited company (trading as Tribe) provides services of any kind except where a separate written agreement covers other services we provide. The parties to this Agreement are Tribe also referenced as “we” or “us” including any subsidiaries or contractors, and the Client also referenced as “you”. The term “Service” or “Services” is used to cover all goods and services of any kind we provide to you.

SERVICES

1. Services shall generally be provided in accordance with a signed Services Support Agreement, Work Request, Statement of Work, Product Quote or other such document as agreed between Tribe and you.

2. We will perform the Services for and as required by you:

• in a professional manner with the degree of skill, care and diligence that is required by good industry procedures and practices;
• using adequate numbers of qualified personnel with suitable training, education, experience and skill;
• in accordance with our operating, information management, technical architecture and other standards and policies and procedures as amended from time to time; and
• in accordance with all laws.

3. We will use reasonable endeavours to not cause any damage, corruption, decrease in capacity to, or decrease in the integrity of the data of your IT system(s). We will use reasonable endeavours not to introduce any harmful, hidden program or data incorporated in a software program or chip that destroys or impairs the program and/or integrity of the data.

4. You may obtain Services from any other supplier at any time.

5. Tribe may use subcontractors to assist with the provision of certain Services such as onsite technicians and software providers. We will remain responsible for the performance of the Services at all times. Where subcontractors are used in the provision of the Services:

• We will not subcontract out the whole of the Services unless approved by you in writing;
• We will provide prior written notice to you if any subcontractors are to be engaged in the delivery of any project to you; and
• We will use all reasonable endeavours to provide prior written notice to you if any subcontractors are to be used for onsite visits (i.e. in locations where Tribe does not have permanent staff).

6. We will not engage in any activity likely to compromise our ability to perform our obligations under this Agreement fairly and independently, and will notify you if we become aware of any conflict of interest relating to our performance of the Services.

7. We will meet with you on a regular basis to discuss our performance of the Services, and will provide you with monthly operational reports setting out an overview of the Services performed during that month.

TERM

8. Our Agreement is open ended with a 24 month term. The Services will commence on the Start Date specified in the Service Level Agreement, Work Request, Statement of Work, Product Quote or other such document as agreed between us and you, or another date as may be mutually agreed.

9. Agreements will continue until termination is invoked as per clauses 10 to 12.

TERMINATION

10. Either party has the right to terminate this Agreement by providing a written notice of 90 days to the other party at any point during the term of this Agreement. Given that our Service Agreements typically span 24 months, any outstanding monthly commitments must be settled in full upon termination.

11. Either party may terminate this Agreement by giving written notice to the other party (the “defaulting party”) with effect from the date specified in the notice if any of the following circumstances occur or exist:

• if the defaulting party commits a material breach of this Agreement which is capable of being remedied and the defaulting party does not remedy that breach within 10 days after receiving written notice of the breach, or if the defaulting party commits a material breach of this Agreement which is not capable of being remedied; and
• if the defaulting party becomes or threaten to become insolvent.

12. If you fail to pay us any monies due under this Agreement, we may terminate the Services 90 days from the due date of the payment subject always to the satisfactory provision of services by us to you. You may bear all costs incurred by us because of payment default.

13. Notwithstanding this Agreement coming to an end the parties shall continue to meet their obligations in respect of clauses 14 to 16, 22, 26, 27, 32 to 35, 43 to 49, 53 and 68 and these clauses shall survive termination.

14. On expiry or termination of this Agreement, we will return (or destroy if requested by you) any of your Confidential Information or Intellectual Property in a form acceptable to you. We will also stop using or accessing any of your assets or equipment used in your business.

15. Termination or expiry of this Agreement for any reason will not affect the rights of either party against the other which accrued before termination or expiry or which otherwise relate to or may arise at any future time from any breach of obligations under this Agreement which arose before termination or expiry.

16. Prior to expiry or on termination of this Agreement, we will provide disengagement services and all other assistance that you consider reasonably necessary or desirable to enable orderly transition on exit and continuity of services to you, at your cost.

YOUR RESPONSIBILITIES

17. You will take all reasonable measures and make all necessary arrangements to safeguard the equipment and software implemented at your premises for the purposes of enabling us to provide the Services.

18. You will ensure access to your premises for our staff to provide the Services and without limiting this clause, ensure the supply of adequate working space and facilities,

ACCESS TO SITES AND PROPERTY

19. You will ensure that our authorised representatives have full and safe access to equipment and your premises for the purposes of:

• providing the Services, installation of and/or service support for any equipment;
• inspecting, repairing or testing of any equipment or software;
• installing, collecting, removing, maintaining or replacing any equipment or software;
• performing any other obligation under this Agreement, subject in any event to the authorisation by you of the proposed work or intervention by us.

20. If:

• you cancel any appointment made with us for our representatives to visit any premises to inspect, install, repair, test or maintain any equipment or thing without reasonable notice; or
• our representatives are unable at the date or time specified in any such appointment to gain access to the premises or to perform such inspection, installation, repair, test or maintenance for any reason attributable to you, we may, in consultation and agreement with you, charge the prevailing fees for the cancellation or the visit of our representatives to the premises.

21. We shall comply with all health and safety laws and your health and safety or security policies and procedures whilst on any of your sites and follow the directions given by any of your staff.

SECURITY

22. You are the owner of your data and should use professional judgment in managing risks to your information and systems. As the custodian and systems administrator of your system, we will make recommendations based on the site’s data classification and risk assessment as determined by you. We will implement owner approved solutions to protect the data. All security controls should be proportional to the confidentiality, integrity, and availability requirements of the data processed by the system. We will not be held liable for loss or compromise of data due to improper data security controls, provided such loss or compromise has not been caused by us.

23. The parties are jointly responsible for the security and secrecy of user ID number(s), password(s) or personal identification number(s) (“PIN”). Tribe and you undertake to ensure that these are not revealed to any unauthorised third party.

24. If the parties discover or suspect any unauthorised use or disclosure of user ID number(s), password(s) and/or PIN or that the account security has been compromised, the knowledgeable party must as soon as practical;

• notify the other; and
• take the appropriate corrective action(s)

25. It is noted that it is advisable to regularly change password(s), PIN or any other security identification to protect the systems integrity and security.

Inducement of Personnel

26. Except as otherwise agreed in writing, both parties agree to refrain from hiring, contracting or employing any employee of the other or its subsidiaries or parent company who performs services about this Agreement until 1 year from the conclusion of this Agreement. The parties acknowledge that this will not apply where an employee responds to a genuine advertisement for a job and without prior discussion with that individual.

Proprietary Information

27. Tribe and you agree that each party will:

a. Not use, disclose, reproduce or otherwise make available, proprietary or confidential information provided by the other party to any person, firm or enterprise other than each party’s employees or agents who have a need to know such information for the purposes of carrying out the terms and conditions set down in this agreement unless specifically authorised to do so by the other party in writing.

b. Exercise all due care and diligence and take all reasonable precautions to prevent any unauthorised disclosure of any proprietary or confidential information. Such precautions shall at least be as careful as those established by the recipient for its own confidential information.

c. Obtain from each employee and agent to whom proprietary or confidential information is disclosed, a covenant incorporating sub clauses 27a and 27b to those (or ensure that the employee and agent is subject to equivalent obligations of confidentiality) and will indemnify and keep indemnified the other party against damage or loss suffered and arising from unauthorised disclosure of proprietary or confidential information by any of its employees or agents.

Force Majeure

28. Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement to the extent that such delay or failure is due to Acts of God and other force majeure events.

29. If a delay or failure to perform obligations is caused or anticipated due to force majeure, the party unable to fulfil its obligations shall immediately give notice in writing to the other party of such fact and the reasons therefore and shall promptly take all reasonable steps to overcome the circumstances delaying or preventing its performance.

30. If a delay or failure to perform a party’s obligations due to force majeure exceeds 20 Working Days either party may immediately terminate this Agreement on providing notice to the other party.

31. If this Agreement is terminated, we shall refund moneys previously paid by you pursuant to this Agreement for Services that have not been provided.

32. Without prejudice, whilst we will use reasonable endeavours to enable you to recover from any system error arising out of or about the performance of the Services, we will not in any way be liable for such system error unless the error is caused by our gross negligence or wilful conduct or breach of this agreement. For the purposes of this paragraph, “system error” means

• system or network downtime
• reduction of bandwidth
• any loss or damage to your system or network and/or data
• loss of access to any information.

33. We will indemnify you for any liability, damage, loss, costs or expenses resulting from our negligence or a breach of this agreement by us.

34. We will not be liable for any special, incidental, exemplary, punitive, indirect or consequential damages including loss of data, loss of profits, revenue, business and anticipated savings unless such loss is directly attributable to negligence, omission or other action by our authorised personnel or delegated technicians.

35. If we are liable to you and we cannot, for any reason, rely on the exclusion of liability set out in the paragraphs above, then the maximum liability to you or any third party, is the greater of:

• all costs and expenses incurred in the rectification, reconciliation and reinstatement of the system to its fully functional state; or
• the maximum monetary amount recovered by us under any insurance policy to which we are insured or otherwise entitled to recover in respect of such liability.

Payment

36. We will provide you with tax invoices monthly or when required in respect of the products and services purchased.

37. You shall pay the undisputed invoices by electronic banking;

• By the 1st of the month for the current month of services charges;
• By the 20th of the month for any service invoices (projects and labour);
• Within 7 days of invoice receipt for hardware and software charges.

38. If you fail to pay monies on the due date, we will provide written notice to you to request payment. If you have not paid within 15 working days after our written notice, we may then discontinue services if unable to resolve through dispute resolution.

39. If you, acting in good faith, dispute the amount of any invoice:

• you may withhold payment of the disputed amount until the dispute is resolved in accordance with the dispute resolution process set out below or the parties agree otherwise; and
• you must pay the undisputed amount of an invoice by the date that invoice is due for payment.

40. Subject to clause 39, where a due amount remains unpaid for more than 30 days after the due date, we may at our sole discretion charge interest on all overdue accounts at a rate of 5% per month calculated daily until payment is received in full but without prejudice to all or any of our rights and remedies under these terms. Any payments received will be applied firstly against any costs and expenses incurred when collecting overdue payments and then against the overdue balance.

Charges not included in this Agreement

41. The following are not included in the charges set out in this Agreement:

• Goods and Services Tax, Sales Tax or any other form of tax arising from the Services.
• Any support service rendered necessary or increased time spent in performing the service due to:
  ‍
  – Physical damage or corruption to any part of the equipment or its software caused by any other equipment not specified in a Service Level Agreement, Work Request, Statement of Work, Product Quote or identified in Site Documentation.
  ‍
  – Failure or fluctuations of any attached equipment, software or dependent service that is not the subject of a Service Level Agreement, Work Request, Statement of Work, Product Quote or identified in Site Documentation.
  ‍
  – Neglect or misuse of equipment or software by either operating or procedural errors, as described in the manufacturers operating manual(s) for the equipment or software.
  
  – Changes to the extent or nature of equipment or software for which we have agreed to provide Services and where we have not received prior notification of such change.

Maintenance

42. Where we are managing your core IT environment, it is necessary that it is regularly upgraded to allow for growth and change in the use of Information Technology. For us to do this, you should expect routine maintenance to be scheduled periodically to comply with new standards and upgrades. We will notify you when such work is needed and will arrange to conduct to undertake it at a mutually agreeable time. Unless otherwise notified by us or specifically noted in a Service Level Agreement, Work Request, Statement of Work or Product Quote, we will carry out all works during business hours which are 7.00 am to 6.00 pm Monday to Friday, excluding public holidays.

Intellectual Property

43. Neither party will acquire any right to the other party’s Intellectual Property owned or licensed to that party which is in existence before the date of this Agreement or created after such date otherwise than in connection with the performance of the Services.

44. Subject to clause 48, ownership of Intellectual Property that is developed or created in performing the Services (the “Developed IP”) will vest in us from its creation.

45. Neither party will use or permit the use of any of the other party’s Intellectual Property except for the purposes of providing or receiving the Services or as permitted by the owning party.

46. We warrant that the Services provided to you and the Developed IP do not breach any Intellectual Property rights of third parties. We agree that we will not knowingly breach the Intellectual Property rights of any third parties in our dealings with you.

47. We will indemnify you against any claim of infringement of Intellectual Property rights by a third party relating to the Services under this agreement. We agree to hold you harmless from and against all costs (including legal costs on a solicitor and own client basis), expenses, judgments and damages which you may be obliged to pay or incur because of any such claim of infringement of Intellectual Property rights. Clauses 32 to 35 will not apply in relation to such infringement claim.

48. Technical Documentation: where we create any technical documentation specifically for your business or your information technology environment, this documentation will belong to you. Upon termination of this agreement for any reason, a PDF copy of such documentation will be released to you, together with any passwords or other detail required to access such documentation, and any copies held by us will be destroyed.

Confidentiality

49. The parties agree not to disclose to any person any information relating to the Services (including any data or information, the user ID number(s), password(s) and PIN), software or equipment, or either party’s business which are/is acquired from, or provided to, the other party or a third-party supplier. This restriction will not apply to any information which is or becomes publicly available otherwise than through a breach of this obligation or was known to the party at the time of disclosure by the other party or its representatives.

50. We will not make any public statement or announcement of any information regarding this Agreement without your prior written consent.

Variations and Additions

51. No alteration or variation to these Terms and Conditions will be binding upon either party unless authorised by both parties in writing.

52. Applications for additional Services or requests for changes to be made to existing Services must be given in writing by each party.

53. Where variations to specific terms are expressly agreed in a Service Level Agreement, Work Request, Statement of Work or Product Quote, the varied terms supersede the terms of this Agreement.

Title

54. Title to any goods provided by us to you (other than by way of rental or lease) will only pass to you on completion of payment. Title will be supplied free of any security interest.

Insurance

55. We will maintain Public Liability and Professional Indemnity insurance policies throughout the term of this Agreement. Copies of our Insurance Certificates are available on request.

PRIVACY

56. We will comply with New Zealand privacy laws and our Privacy Policy in respect of any personal information that we collect or obtain under this Agreement. A copy of our Privacy Policy is available on request.

WARRANTIES

57. We warrant that the Services will be provided by us with all due care, skill and attention and that we have the level of skill, knowledge, experience and ability which may be expected of a professional organisation experienced in providing services of the same type and complexity as the Services. Where the Services relate to third party software, we warrant the Services will be performed in accordance with the published documentation available from the relevant third party (unless agreed otherwise by you).

58. Where we are providing goods to you, we warrant that we are entitled to supply the goods to you and that the goods will (where applicable) be properly installed, and are fit for your purposes and for any purpose for which such goods are commonly acquired.

59. We will notify you if we become aware of a breach of warranty.

60. No other warranties (other than those set out in clauses 57 – 59 above) are provided. You agree that the Services are being provided for your business purposes and therefore the implied warranties and guarantees under the Consumer Guarantees Act 1993 do not apply to this Agreement.

Dispute Resolution

61. We will deal promptly and professionally with any complaints concerning the Services.

62. If a dispute should arise between the parties in relation to any aspect of this Agreement, the parties will first attempt to resolve that dispute through negotiation in good faith.

63. If negotiation fails within 28 days of the date on which one party first contacted the other party for attempting to resolve the dispute, either party may refer the dispute to a single arbitrator (to be appointed by the President of the Auckland Law Society for the time being or his nominee) in accordance with the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule). The arbitration will be held in Hastings, New Zealand.

64. The single arbitrator’s decision will be final and binding.

65. For the avoidance of doubt, neither party may commence legal proceedings in relation to the arbitrator’s decision, or in relation to any dispute other than injunctive relief.

GENERAL

66. Any notice, document, request, demand or other communication to be given for the purposes of this Agreement must be in writing and may be served personally or sent by registered mail or by email to the addresses of each party.

67. Neither party may assign, novate, subcontract, transfer or otherwise dispose of all of its rights or obligations under this Agreement without the prior written consent of the other party.

68. Nothing in this Agreement will evidence, be construed or deemed to constitute partnership or a joint venture between the parties. No party will have the authority to act for, or to incur any obligation on behalf of the other party.

69. Any failure by a party to enforce any provision of this Agreement will not waive that party’s right thereafter to enforce any such provision.

70. This Agreement is governed by the laws in New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.

71. We have standard specifications for each service we provide. Some services also have specific service targets and additional terms such as disclaimers or exclusions of liability. These product specifications and terms form part of this Agreement and describe our obligations to you, including situations where our obligations are limited or do not apply.