BETWEEN mVentory Ltd (“Company”) of Auckland, New Zealand
AND “Contractor”
together known as the Parties
A) The Company wishes to engage the Contractor as an independent contractor to perform the Services.
B) The parties have agreed that the Contractor will perform the Services for the Company on the terms and conditions set out below.
1.1 In this Agreement unless the context otherwise requires:
‘Agreement’ means this agreement including the background and schedules;
‘Commencement Date’ means the date listed in Schedule 2;
‘Services’ means the services referred to in clause 3.1 and Schedule 2;
2.1 This Agreement will commence on the Commencement Date set out in Schedule 2 and will continue in force until the Termination Date set out in Schedule 2, unless terminated earlier in accordance with its provisions.
3.1 The Company engages the Contractor to deliver the Services and any other services agreed between the parties from time to time in writing, on the terms and conditions set out in this Agreement.
3.2 The Contractor must during the term of this Agreement:
-
(a) perform the Services to the highest industry standards and so as to promote and further the interests of the Company;
-
(b) comply with all relevant laws applicable to the performance of the Services;
-
(c ) comply with the Company’s reasonable directions and instructions in relation to the performance of the Services;
-
(d) ensure that no other person performs the Contractor’s obligations under this Agreement on the Contractor’s behalf, without the prior written consent of the Company;
-
(e) work with the employees and contractors of the Company as required, in a competent and professional manner;
-
(f) be available at reasonable times for meetings to receive necessary instructions or directions from the Company;
-
(g) engage with the Company honestly, ethically and proactively about all matters relevant to the performance of the Services under this Agreement;
-
(h) at all times conduct themselves in a manner which is respectful, appropriate, courteous and professional.
3.3 The Contractor must not, whether in the performance of the Services, or otherwise, conduct themselves in a manner which has the potential to, or actually damage the image and reputation of the Company, or bring the Company into disrepute.
3.4 The Contractor warrants and acknowledges that at the Commencement Date and for the period of the term of this Agreement that the Contractor is not bound by, or subject to, a covenant of restraint of trade or any other similar legal restraint, and is free to provide the Services as agreed.
3.5 The Contractor agrees that the Contractor shall not, without the prior written consent of the Company, give or make any oral or written commitment, undertaking, warranty, covenant, or conditional representation relating to or on behalf of the Company.
3.6 The Contractor shall not without the prior written consent of the Company, contract any liability of any kind whatsoever in the name of or on behalf of the Company, except as expressly permitted by this Agreement.
3.7 The Contractor shall not for the duration of this Agreement perform any services for a direct competitor of, or in competition with, the Company. Subject to this clause the Contractor may provide services for any other person so long as the provision of such services does not interfere with the Contractor’s obligations under this Agreement.
4.1 Subject to complying with the provisions of this Agreement, the Company will pay the Contractor the Fee set out in Schedule 2 of this Agreement.
4.2 The Contractor must maintain a proper record of the work done in a form specified in Schedule 2 of this Agreement.
4.3 The Contractor must properly invoice the Company for each payment due based on the records specified in clause 4.2 of this Agreement. Amounts properly invoiced will be payable by the Company upon receipt of an invoice.
4.4 All payments specified in Schedule 2 are exclusive of GST (unless otherwise stated), which must be paid in addition by the Company providing the Contractor is GST registered.
4.5 The Company may deduct from any fee(s) owed to the Contractor, the value of any property, which is not returned, or any debts owed to the Company by the Contractor upon the termination of this Agreement.
4.6 The Company will reimburse the Contractor for actual and reasonable expenses incurred by the Contractor in performing the Services provided that:
-
(a) The Company has agreed the scope or detail of the expense in writing prior to the Contractor incurring the expense; and
-
(b) The Contractor shall invoice the Company for such expense and provide copies of all relevant receipts and documentation relating to the expenses.
4.7 The Company will not be liable for any payments over and above the agreed Fee. The Contractor must notify the Company if the work cannot be completed within the agreed budget as soon as it becomes apparent.
5.1 Notwithstanding the remainder of this clause 5, either party may terminate this Agreement by giving a notice in writing to the other party. The duration of the notice is set out in Schedule 2 of this Agreement. No reason for the termination need be provided in the event notice is given under this sub-clause.
5.2 The Company may terminate this Agreement immediately without notice to the Contractor if:
-
(a) the Contractor fails to observe or perform any of the terms and conditions of this Agreement; or
-
(b) the Contractor commits an act which in the Company’s reasonable opinion is incompatible with the continued due and faithful performance of the Contractor’s obligations under this Agreement;
-
(c ) The Contractor becomes, in the Company’s reasonable opinion, incapable of continuing to deliver the Services under this Agreement; or
-
(d) the Contractor becomes insolvent.
5.3 Unless terminated earlier in accordance with this clause, this Agreement will terminate on the Termination Date set out in Schedule 2. In such circumstances, neither Party will be required to give notice of termination.
6.1 Upon termination of this Agreement, the Contractor shall immediately deliver to the Company full records, documents, plans, letters, papers, access keys and material of any description (including all copies or extracts from the same) within its possession or control relating to the affairs of the Company.
6.2 Termination of this Agreement will be without prejudice to any rights or obligations of the parties, which have accrued as at the date of termination.
6.3 On termination of this Agreement, clauses 10 and 11 and any other clauses that are intended by the parties to continue after termination will continue to apply.
7.1 The relationship between the Company and the Contractor is that of principal and independent contractor, and nothing in this Agreement will be taken as constituting a relationship of employer and employee between the Company and the Contractor.
7.2 The Contractor will be responsible for payment of any income tax, accident compensation levies and any other relevant taxes, levies, or items payable by an independent contractor in relation to the provision of the Services and any money payable under this Agreement.
7.3 The Contractor will also comply with all statutory and regulatory requirements with regard to the filing of tax returns.
8.1 The Company indemnifies the Contractor from and against all actions, claims, proceedings, costs and damages incurred or awarded in respect of, or arising out of, any act or omission or statement of the Contractor in the course of the proper performance of the Services in accordance with this Agreement, unless the Contractor is criminally liable, or grossly negligent, or in breach of this Agreement or acting outside the Contractor’s scope of authority in relation to the provision of the Services, or clause 8.3 applies.
8.2 The Contractor indemnifies the Company from and against any liability for any direct, indirect or consequential injury, loss or damage, action, claim, proceedings, costs and damages incurred or awarded, arising out of any act, default or omission of, or any representation made by, the Contractor (including any employee or agent) where the Contractor (including any employee or agent) is criminally liable, or grossly negligent, or in breach of this Agreement, or acting outside the Contractor’s scope of authority in relation to the provision of the Services.
8.3 The Contractor will also indemnify the Company against any liabilities, costs or losses suffered by the Company if the relationship between the parties in relation to the provision of the Services is subsequently found to be that of employer and employee.
9.1 For the purposes of this clause, ‘Confidential Information’ means all information relating to the Company’s business obtained by the Contractor in its dealings with the Company unless it was already available from a public source.
9.2 The Contractor must not during the term of this Agreement or after its termination, without the Company’s prior written consent, use, copy or disclose, or cause or permit to be used, copied or disclosed any Confidential Information and will use its best endeavours to prevent publication and disclosure of Confidential Information.
9.3 The Contractor must, on request by the Company and on termination of this Agreement for whatever reason, destroy all copies of Confidential Information in his possession.
9.4 The Contractor acknowledges that the content of this Agreement will be held in confidence and will not be disclosed or discussed or made known to anyone other than the Contractor’s or the Company’s professional advisors.
10.1 The Contractor acknowledges that all logos, trademarks, processes, inventions, and other intellectual property (whether protected by copyright and/or patent, or not) shall be and remain the sole property of the Company, and the Contractor shall have no right (whether during the term of, or following the termination of, this Agreement) to use, sell, or otherwise dispose of, any such intellectual property without the Company’s prior written consent.
10.2 Any trade mark, goodwill, patent, design or copyright work, procedure, process, formula, method of production, invention or other discovery created by the Contractor in the performance of the Services, must immediately be disclosed to the Company and shall be the absolute property of the Company. The Contractor will:
-
(a) Automatically transfer all the Contractor’s rights in the intellectual property on creation to Company without the need for any further documentation; and
-
(b) Do all things necessary to give effect to the Company’s rights to the intellectual property.
10.3 Acceptance of this agreement confirms that if required, the Contractor will automatically transfer all proprietary rights in all intellectual property to the Company without the need for further documentation, and irrevocably waive all moral rights in relation to it.
11.1 The Contractor agrees that during the term of the Contract and for a period of six months following its termination, the Contractor shall not, whether directly or indirectly, alone or with any other person:
-
(a) Attempt to encourage or persuade any of the Company’s Clients, suppliers, or customers to terminate or restrict their trade relations with the Company;
-
(b) Solicit or endeavour to entice away from the Company any of the Company’s Clients, employees, customers, or contractors.
11.2 The restrictions of this clause shall survive the termination of this Agreement.
12.1 The Contractor undertakes to comply with the provisions of the Health and Safety in Employment Act 1992 and its amendments insofar as those provisions relate to the performance by the Contractor of any obligations on the Contractor under this Agreement.
12.2 All hazards identified by the Contractor must be reported to the Company as soon as is practicable so that appropriate action may be taken.
12.3 All accidents and/or injuries which occur arising out of or during the term of this Agreement (no matter how minor) must be reported in writing to the Company as soon as is practicable after the accident occurs and to such bodies and/or persons required under the Health and Safety in Employment Act 1992 or the Health and Safety in Employment Regulations 1995 or any amendments.
13.1 Where any question, dispute or difference (‘Dispute’) arises between the parties concerning or in any way arising out of this Agreement or the performance of either party in terms of this Agreement, the parties will make a genuine effort to resolve the question, dispute or difference without resorting to litigation using the procedures set out in Schedule 1.
14.1 Any notice given pursuant to this Agreement will be deemed to be validly given if personally delivered, posted, or forwarded by email to the address of the party to be notified set out in Schedule 2 or to such other address as the party to be notified may designate by written notice given to all other parties.
14.2 Any notice given pursuant to this Agreement will be deemed to be validly given:
-
(a) in the case of delivery, when received;
-
(b ) in the case of email communication, when sent (which must be evidenced by production of an email to the appropriate address showing the time and date at which the email was sent);
-
(c) in the case of posting, on the second day following the date of posting; provided that any notice personally delivered or emailed either after 5 pm on a working day or on any day that is not a working day will be deemed to have been received on the next working day.
14.3 This Agreement contains all of the terms, representations and warranties made between the parties and supersedes all prior discussions and agreements covering the subject matter of this Agreement.
14.4 No amendment to this Agreement will be effective unless it is in writing and signed by both of the parties.
14.5 Neither party may assign its rights under this Agreement without the prior consent in writing of the other party.
14.6 No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.
14.7 The agreements, obligations and warranties contained in this Agreement will not merge on completion of the transactions contemplated by it but will remain in full force until satisfied.
14.8 If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
14.9 Where this Agreement confers a benefit upon any third party, the parties do not intend to create an obligation enforceable by that third party.
14.10 Time will be of essence in the performance by either party of its obligations under this Agreement.
14.11 The rights of the parties under this Agreement are cumulative and are not exclusive of any other rights and remedies available to either party.
14.12 This Agreement will be governed and construed in accordance with the laws of New Zealand.
The party seeking resolution of a Dispute (‘First Party’) must provide written notice of the same to the other party (‘Other Party’) and nominate in that notice its representatives for the negotiation. The Other Party must within 14 days notify the First Party in writing of the names of its representatives for the negotiation. Each representative nominated will have authority to settle the Dispute.
If the parties are unable to resolve the Dispute by discussion and negotiation within 14 days of receipt of the written notice from the Other Party (or a timeframe as otherwise agreed), then the parties must immediately refer the Dispute to mediation.
The mediation should be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator and at a fee agreed by the parties. Failing agreement between the parties, the mediator will be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc. The mediator’s fee will be borne equally between the parties.
If the Dispute remains unresolved after the mediation, then the Dispute must be submitted to the arbitration of a single arbitrator agreed on between the parties, or in default of agreement to be nominated by the President of the New Zealand Law Society. The arbitration will be conducted in accordance with the Arbitration Act 1996 and the provisions of the Second Schedule of the Act will apply. The parties reserve the right to appeal to the High Court on any question of law arising out of an award.
Nothing in this Schedule will preclude or prevent either party from taking immediate steps to seek urgent interlocutory relief before an appropriate court, as long as the Party seeking such relief has attempted to resolve the matter directly with the other prior to filing proceedings.
Name: mVentory Ltd
Address:
Email:
Phone number:
Name:
Address:
Email:
Phone number:
Service type:
Commencement date:
Termination date:
Termination notice period:
Fee:
Bonus:
Record of work:
Time logging frequency:
Invoice frequency: