Terms of engagement

These Terms of Engagement (Terms) apply to all services (Services) provided by Reqlarity (us, we, our) to you, the client (you, your).

These Terms, together with any Proposal we provide, form the entire agreement between us for any engagement.

We may change these Terms and will publish the change on our website. The change will bind you in respect of any matters on which we accept instructions after publication of the change whether or not we send you another copy of them.

1. Scope of services

1.1 The specific scope of the Services, including objectives, key activities, and any deliverables, will be detailed in the applicable Proposal. This ensures clarity on the Services to be undertaken by us for any engagement.

1.2 In instructing us to provide the Services you agree to be bound by this agreement whether or not you have signed the applicable Proposal.

2. Term

2.1 This agreement commences on the date we first provide to you the Services and continues until the Services are completed unless terminated in accordance with this agreement.

3. Obligations

3.1 In providing the Services, we shall:
(a) provide all personnel, processes, and resources required to provide the Services;
(b) comply with any reasonable directions from you;
(c) use appropriately skilled, qualified and experienced personnel;
(d) keep you fully advised of the progress of the Services and changes or possible changes to the scope or timing of the Services;
(e) comply with all relevant laws and maintain all licences, approvals and permits required in order to provide the Services; and
(f) without limiting cls 3(b) to 3(e), exercise that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled, reasonable and experienced operator in the same or similar circumstances, with reference to best international standards and practice.

3.2 To enable us to provide the Services effectively, you agree to:
(a) provide us with clear, timely and accurate instructions;
(b) provide all necessary information, data and access to relevant personnel and systems as reasonably required by us; and
(c) make decisions and provide approvals in a timely manner.

4. Fees

4.1 You shall pay us the Fees for providing the Services specified in the applicable Proposal.

4.2 Any Fees quoted are only valid for a period of 20 Business Days following the date we provide the applicable Proposal.

4.3 You agree to reimburse us for all reasonable disbursements and out-of-pocket expenses incurred in connection with the provision of the Services specified in the applicable Proposal if any (e.g. travel, accommodation). These will be invoiced at cost.

5. Invoicing and payment

5.1 We will issue invoices on a monthly basis, unless otherwise agreed in the applicable Proposal.

5.2 Each invoice shall be in the form of a tax invoice for GST purposes.

5.3 Payment is due on the 20th day of the month following the date of the invoice, unless otherwise specified in the applicable Proposal. All fees are exclusive of GST.

5.4 If any invoice is not paid by the due date, we reserve the right to:
(a) Charge interest on the overdue amount at a rate of 2% per month, calculated daily; and/or
(b) Suspend the provision of Services until all outstanding amounts are paid in full.

5.5 If we have to spend any money on collecting, or attempting to collect, any overdue amount(s) from you (Collection Costs), then you must reimburse us for those Collection Costs.

5.6 Payments received from you will be applied first towards any accumulated disbursements, office charges and Collection Costs, and then any surplus will be applied towards payment of the overdue amount(s) in order of age (starting with the oldest invoice).

5.7 If you, in good faith, dispute the accuracy of any invoice, you shall, within 5 Business Days after receipt of the invoice, give notice of that fact to us. That notice shall state the basis of the dispute and give relevant supporting details. You shall pay the undisputed portion of the invoice and may withhold payment of the disputed portion. If the parties do not resolve the dispute within 5 Business Days of the date of the notice, the dispute shall be determined in accordance with cl 11.

6. Intellectual Property

6.1 All Intellectual Property which is owned by, or is proprietary to, a party at the date of this agreement shall remain owned exclusively by that party.

6.2 Any new Intellectual Property which is created as a result of, or in connection with, the provision of the Services, or otherwise in connection with this agreement, shall be jointly owned by us and you, and shall not be used by a party for any purposes other than this agreement without the written consent of the other party.

6.3 Nothing in this agreement confers on a party any right or interest in, or licence to use, or permit to be used, any of the other party's Intellectual Property except that we shall have a non-exclusive licence to use your Intellectual Property to the extent required to give effect to this agreement and provide the Services. That licence will expire immediately on termination of this agreement.

7. Confidentiality

7.1 Subject to cl 7.2, each party shall keep the other party's Confidential Information confidential and to use it only for the purposes of this agreement.

7.2 Confidential Information may be disclosed by a party if:
(a) disclosure is required by law, or necessary to comply with the listing rules of any recognised stock exchange;
(b) disclosure is necessary to obtain the benefits of, and fulfil obligations under, this agreement;
(c) that information already is, or becomes, public knowledge other than as a result of a breach of cl 7.1 by that party; or
(d) disclosure is made to a bona fide financier or potential financier of that party, or to a bona fide purchaser or potential purchaser of all or part of the business of, or the shares in, that party, so long as:
(i) that party has notified the other party of the proposed disclosure; and
(ii) the person to which disclosure is to be made has entered into a confidentiality agreement in a form reasonably acceptable to the other party; or
(e) disclosure is made to a lawyer or accountant for that party.

7.3 If either party is required by cl 7.2(a) to make a disclosure or announcement, it shall, before doing so:
(a) give to the other party the maximum notice reasonably practicable in the circumstances, specifying the requirement under which it is required to disclose the Confidential Information, and the precise Confidential Information which it is required to disclose;
(b) comply with all reasonable directions by the other party to contest or resist the requirement to disclose the Confidential Information; and
(c) consult in good faith with the other party, with a view to agreeing upon the form and timing of the disclosure or announcement.

8. Force majeure

8.1 Neither party shall be liable for any failure or delay in complying with any obligation imposed on that party under this agreement if:
(a) the failure or delay arises directly or indirectly from an event or circumstance reasonably unforeseeable or beyond that party's control and not arising from the fault or insolvency of that party (Event). The following are included as, but not limited to, events or circumstances reasonably unforeseeable or beyond a party's control:
(i) act of God;
(ii) earthquake, flood, fire, storm and adverse weather conditions or natural events for which provision could not reasonably have been made;
(iii) interruption or failure of any utility services, or unpredictable delays which could not reasonably be prevented in delivery of materials, equipment or services necessary for the compliance by that party with an obligation under this agreement;
(iv) sabotage, riot, civil disturbance, explosion, terrorist acts, insurrection, epidemic, national emergency (whether in fact or law) or act of war (whether declared or not);
(v) act or omission of any authority not directly or indirectly arising from any act or omission by that party, its agents, representatives or advisors;
(vi) governmental restraint, sanction, expropriation, prohibition, intervention, direction or embargo;
(vii) strike, lockout, work stoppage or other labour hindrance; and
(viii) that party complies with cl 8.2.

8.2 A party which wishes to rely on cl 8.1 shall:
(a) Give to the other party written notice as soon as possible but within 5 Business Days after becoming aware of the Event or likelihood of the Event, providing details of the nature, expected duration and effect of the Event, and keep the other party informed of any changes in the nature of the cause and of the cessation of the Event; and
(b) use its reasonable endeavours to:
(i) mitigate the effects of the Event on that party's obligations under this agreement; and
(ii) perform that party's obligations under this agreement within the time specified by this agreement, despite the Event.

8.3 Cl 8.1 does not excuse a party from any obligation to make a payment when it falls due under this agreement.

8.4 If a party is unable to comply with any obligation imposed on it under this agreement as a result of an Event for 20 consecutive Business Days, either party may cancel this agreement by giving written notice to the other party. Cancellation of this agreement under this clause shall not prejudice the rights of either party against the other party in respect of any matter or thing occurring under this agreement prior to cancellation.

9. Termination for breach

9.1 If in respect of either party:
(a) that party materially breaches this agreement and fails to remedy the breach to the other party's reasonable satisfaction within 20 Business Days after receiving notice from the other party specifying the breach or failure and requiring remedy; or
(b) that party ceases to carry on all or substantially all of its business or operations; or
(c) that party:
(i) is, becomes or is deemed to be unable to pay its debts, insolvent or bankrupt; or
(ii) makes an assignment for the benefit of, or enters into or makes any arrangement or compromise with, its creditors generally; or
(iii) goes into receivership or voluntary administration or has a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property; or
(d) anything analogous to an event in cl 9.1(c) occurs in respect of that party; or
(e) any resolution is passed, or any proceeding is commenced, for the dissolution of that party;the other party may, by notice to that party, terminate this agreement.

9.2 Expiry or termination of this agreement:

(a) is without prejudice to any other right, power or remedy under this agreement, at law or otherwise, that either party has in respect of a default by the other party; and
(b) shall not terminate cls 6 and 7, which shall continue in force notwithstanding expiry or termination.

10. Liability

10.1 To the maximum extent permitted by law, our total aggregate liability to you for any claim, damage, loss or expense arising out of or in connection with this agreement or the Services (whether in contract, tort, or otherwise) is limited to the total Fees (excluding GST and disbursements) paid by you to us.

10.2 We will not be liable for any indirect, consequential or special loss, or for any loss of profit, revenue or business opportunity.

10.3 You agree to indemnify us against any loss, damage or liability incurred by us arising from any breach by you of your obligations under this agreement, or from any wrongful act or omission by you or your employees.

11. Dispute

11.1 Any dispute, difference or question arising out of, or in connection with, this agreement (Dispute) must be resolved in accordance with the procedures set out in this clause.

11.2 A party claiming that a Dispute has arisen must give written notice to the other party specifying the nature of the Dispute (Dispute Notice). On receipt of a Dispute Notice, the parties must use their best endeavours to resolve the Dispute by good faith negotiation within 10 Business Days.

11.3 If the Dispute is not resolved by negotiation within 10 Business Days of the Dispute Notice, the Dispute must be referred to mediation. The mediation shall be conducted by a single mediator agreed upon by the parties. If the parties cannot agree on a mediator within 5 Business Days of the Dispute being referred to mediation, a mediator will be appointed by the President for the time being of the New Zealand Law Society (or their nominee).

11.4 The mediation shall be conducted in Wellington and accordance with the Resolution Institute Mediation Rules. The costs of the mediator will be shared equally between the parties, who will otherwise bear their own costs. All discussions in the mediation are confidential and without prejudice, and will not be admissible in any subsequent arbitration or court proceedings.

11.5 If the Dispute is not resolved within 20 Business Days of the appointment of the mediator (or such further period as the parties may agree in writing), either party may refer the Dispute to arbitration by giving written notice to the other party.

11.6 The arbitration will be conducted by a single arbitrator agreed upon by the parties. If the parties cannot agree on an arbitrator within 10 Business Days of the referral to arbitration, an arbitrator will be appointed by the President for the time being of the New Zealand Law Society (or their nominee). The arbitration shall be conducted in Wellington in accordance with the Arbitration Act 1996 and its Schedules. The arbitrator's award will be final and binding on the parties.

11.7 Nothing in this clause prevents a party from seeking urgent interlocutory relief from a court of competent jurisdiction.

11.8 Pending resolution of a Dispute, the parties must continue to perform their obligations under this agreement to the greatest extent possible.

12. Assignment and subcontracting

12.1 Neither party shall directly or indirectly assign, transfer or otherwise dispose of any of its rights or interests in, or any of its obligations or liabilities under, or in connection with, this agreement except with the prior consent of the other party, such consent not being unreasonably or arbitrarily withheld or delayed.

12.2 We shall not subcontract the performance of the Services or any other obligation of us under this agreement except with the prior consent of you, such consent not being unreasonably or arbitrarily withheld or delayed.

12.3 We shall notwithstanding any subcontracting remain liable to you for the performance of the Services and of the other obligations of us under this agreement.

13. Notices

13.1 Every notice or other communication (Notice) for the purposes of this agreement shall:
(a) be in writing; and
(b) be delivered in accordance with cl 13.2.

13.2 A Notice may be given by:
(a) delivery to the physical address of the relevant party; or
(b) posting it by pre-paid post to the postal address of the relevant party; or
(c) sending it by email to the email address of the relevant party.

13.3 A Notice given in the manner:
(a) specified in cl 13.2(a) is deemed to be received at the time of delivery;
(b) specified in cl 13.2(b) is deemed to be received 3 Business Days after (but exclusive of) the date of posting;
(c) specified in cl 13.2(c) is deemed to be received:
(i) if sent between the hours of 9 am and 5 pm (local time) on a local working day, at the time of transmission; or
(ii) if cl 13.3(c)(i) does not apply, at 9 am (local time) on the local working day most immediately after the time of sending.

For this purpose “local time” is the time in the place of receipt of the Notice, and a “local working day” is a normal working day in that place.

14. General

14.1 No amendment to this agreement is effective unless it is in writing and signed by both parties.

14.2 Nothing in this agreement shall create or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and a party may not make, or allow to be made, any representation that any such relationship exists between the parties. A party shall not have authority to act for, or to incur any obligation on behalf of the other party, except as expressly provided for in this agreement.

14.3 If any provision of this agreement is or becomes unenforceable, illegal or invalid for any reason it shall be deemed to be severed from this agreement without affecting the validity of the remainder of this agreement and shall not affect the enforceability, legality, validity or application of any other provision of this agreement.

14.4 No failure or forbearance by a party to exercise, or delay in exercising, (in whole or in part) any right, power or remedy under, or in connection with, this agreement shall operate as a waiver of that right, power or remedy. A waiver of any breach of any provision of this agreement shall not be effective unless that waiver is in writing and is signed by the party against whom that waiver is claimed. A waiver of any breach shall not be, or be deemed to be, a waiver of any other or subsequent breach.

14.5 This agreement is governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of this agreement.

14.6 Definitions

In this agreement unless the context otherwise requires:
Business Day means any day other than a Saturday, Sunday or a statutory public holiday in Wellington.
Confidential Information means:
(a) the existence and terms of this agreement; and
(b) all information obtained from the other party under this agreement or in the course of negotiations in respect of this agreement.
Default Rate means 12% per annum.
GST means goods and services tax chargeable, or to which a person may be liable, under the Goods and Services Tax Act 1985.
Intellectual Property means, in respect of any person, all intellectual and industrial property rights and interests (including common law rights and interests) owned or held by that person, or lawfully used by that person, including, without limitation:
(c) patents, trade marks, service marks, copyright, registered designs, trade names, symbols, and logos; and
(d) patent applications and applications to register trade marks, service marks and designs; and
(e) formulae, methods, plans, data, drawings, specifications, characteristics, equipment, designs, inventions, discoveries, improvements, know-how, experience, software products, trade secrets, price lists, costings, brochures and other information used by that person.

14.7 In this agreement, unless the context otherwise requires:
(a) headings are to be ignored in construing this agreement;
(b) the singular includes the plural and vice versa;
(c) references to individuals include companies and other corporations and vice versa;
(d) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them (whether before or after the date of this agreement);
(e) reference to any document includes reference to that document (and, where applicable, any of its provisions) as amended, novated, supplemented, or replaced from time to time;
(f) reference to a party, person or entity includes:
(i) an individual, partnership, firm, company, body corporate, corporation, association, trust, estate, state, government or any agency thereof, municipal or local authority and any other entity, whether incorporated or not (in each case whether or not having a separate legal personality); and
(ii) an employee, agent, successor, [permitted] assign, executor, administrator and other representative of such party, person or entity;
(g) “written” and “in writing” include any means of reproducing words, figures or symbols in a tangible and visible form;
(h) references to money are to New Zealand dollars;
(i) reference to a section, clause, sub-clause, schedule or a party is a reference to that section, clause, sub-clause, schedule or party in this agreement unless stated otherwise;
(j) “control” includes where one or more persons, directly or indirectly, whether by the legal or beneficial ownership of shares, securities or other equity, the possession of voting power, by contract, trust, or otherwise:
(i) has, or may have, the power to appoint or remove the majority of the members of the governing body of the person concerned; or
(ii) controls or has the power, or may have the power, to control the affairs or policies of the person concerned; or
(iii) is in a position to derive more than 50% of the benefit of the existence or activities of the person concerned.