Terms & Conditions
SHIEFF ANGLAND
LAWYERS
AUCKLAND
DATED
PARTIES
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(B C Vault)
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(Operator)
Deed
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B C Vault has experience and capabilities relating to the management of apartment buildings.
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The Operator is an owner and/or operator of one or more shared residential or commercial buildings (Operator Buildings) and has certain management and/or maintenance responsibilities in regards such buildings.
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The Operator wishes to engage B C Vault and B C Vault has agreed to provide the Services as set out in this Agreement or as is agreed from time to time in relation to the Operator Buildings.
Deed
Definitions and Interpretation
In this Agreement, unless otherwise indicated by the context:
Agreement means this agreement, including any schedule or annexure to it.
Commencement Date means the date of this agreement.
Confidential Information means information of every kind comprising or in any way related to the current or future business or business interests, methodology, products, services, intellectual property, personnel, clients, suppliers, customers or affairs of the Operator (including information concerning the existence and terms of this Agreement) which comes to the knowledge of B C Vault, but excludes information which:
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s publicly available without breach of this Agreement; or
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B C Vault obtained from a third party without breach by that third party of any obligation of confidence concerning that confidential information
Fee has the meaning given to that term in clause 7.1.
Intellectual Property Rights means any copyright, patent, design, or trade mark rights (whether registered, unregistered or applied for in New Zealand or overseas), trade, business, company or domain name, any inventions, processes or know-how (whether in writing or recorded in any form) or any other proprietary, licence or personal rights arising from intellectual activity in business, industrial, scientific or artistic fields.
Operator Buildings means the buildings specified in Schedule B of this Agreement and any additional buildings specified and agreed by the parties from time to time.
Services means the services specified in Schedule A of this Agreement and any additional work specified and agreed by the parties from time to time.
Term has the meaning given to that term in clause 2.1.
Third Party means any persons or entities as listed in Schedule B and any persons or entities as agreed by both parties from time to time.
In this Agreement, unless otherwise indicated by the context:
words importing the singular include the plural and vice versa;
headings are for convenience only and do not affect interpretation of this Agreement;
a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of this Agreement;
where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
Term Details to be entered from option chosen.
Agreement shall continue for a period of [ ] months from the Commencement Date (Term) unless terminated prior to the Term of the Agreement.
B C Vault may extend the Term for a further [ ] months by giving notice of its intention to do so in writing to the Operator no later than one (1) months prior to the expiry of the Term.
Services
The Operator appoints B C Vault as its exclusive supplier of the Services and B C Vault accepts such appointment and agrees to provide the Services on the terms of this Agreement.
The Operator shall provide B C Vault with all information reasonably required by B C Vault and comply with all reasonable directions, if any, by BC Vault in order for it to provide the Services.
Each party shall:
use its best endeavours to act in strict compliance with all applicable laws, regulations and industry codes of conduct;
act in utmost good faith towards each other in all dealings with each other and in carrying out its obligations under this Agreement.
B C Vault shall provide the Services:
in accordance with the Service Levels;
with due skill and care;
in accordance with all reasonable directions given by the Operator from time to time in accordance with or consistent with the scope of this Agreement;
in compliance with all applicable laws and regulations.
Payment
1.In consideration for the provision of the Services the Operator shall pay the Charges.
B C Vault will invoice the Operator for the Charges as specified by the payment option chosen.
B C Vault’s invoices will:
identify the Services to which the Charges;
be in the form of a tax invoice for GST purposes.
Upon receipt of an invoice in accordance with the above, the Operator shall pay such invoice as per the conditions specfied in the option chosen.
Confidentiality
B C Vault must keep confidential, and ensure that its personnel keep confidential, all of the Confidential Information.
B C Vault may use the Confidential Information solely for the purpose of performing its obligations under this Agreement and may only disclose the Confidential Information to those of its personnel who:
have a need to receive it (and only to the extent that such personnel have a need to receive it); and
have been made aware of its confidential nature and agreed to maintain its strict confidence.
B C Vault may disclose Confidential Information to any person where such disclosure is made for the purpose of carrying out the Services.
Intellectual Property Rights
Each party will, where necessary in relation to the performance by the other party of its obligations under this Agreement during the Term, grant that other party a royalty free licence, to use all or part of that party’s Intellectual Property where such Intellectual Property is reasonably required for such performance.
Each party (indemnifier) indemnifies the other party (and where Intellectual Property is jointly owned by the parties, proportionate to each party’s ownership) for all costs (including reasonable legal costs on a solicitor and client basis), losses and damages resulting from any claim or action brought against the other party and/or their related companies, employees, and service providers, where this may result from any claim that any third party’s Intellectual Property rights have been infringed as a result of any act or omission by the indemnifier under this Agreement.
Termination
Either party may terminate this Agreement for any reason on the giving to the other party written notice of 90 days.
This Agreement shall immediately terminate if (each a Termination Event):
a party is in material breach of any of its obligations under this Agreement and fails to rectify that breach within 14 days of a notice in writing from the other party requiring it to do so;
a party has a petition presented, or an order made, or an effective resolution passed, or analogous proceedings taken for its bankruptcy, liquidation, dissolution or winding up (except for the purpose of solvent reconstruction, reorganisation or amalgamation);
a party has an encumbrancer, receiver, liquidator, trustee or similar officer take possession of, or be appointed with respect to all, or any part of its business, assets or undertaking;
a party ceases, or threatens to cease carrying on its business or makes an assignment for the benefit of creditors or entering into any general arrangements or composition with, or for the benefits of its creditors.
Termination of this Agreement as a result of either clause or will be without prejudice to the respective rights of the parties (including any right to damages) at law or in equity.
Termination of this Agreement shall not affect such rights and obligations of the parties as are intended to survive the termination, and the termination shall be without prejudice to, and shall not be deemed a waiver of any claims which any party may have against any other party in respect of any breach or other failure to comply with any term or condition of this Agreement prior to the date of termination.
Relationship of Parties
The parties agree that the relationship between them shall be that of independent contractors and that nothing in the Agreement constitutes any relationship of employer and employee, principal and agent or partnership between the parties, and neither party has any authority to represent the relationship as such.
Indemnity
The Operator indemnifies B C Vault, its officers, employees and agents (Indemnified Parties) against all claims, losses, damages, liability or expenses (including actual legal costs payable to legal representatives) suffered or incurred by the Indemnified Parties and arising directly or indirectly from or in connection with a breach or non-performance of any of the obligations or warranties of Operator under this Agreement; any breach by the Operator of any representation express or implied made by the Operator to B C Vault or any third party in connection with this Agreement, any negligent or unlawful act or omission by Operator; or any claim by any person arising out of the provision of Services by the Operator.
Dispute Resolution
If a dispute arises out of or relates to this Agreement (including any dispute as to breach or termination, or as to any claim in tort, in equity or pursuant to any statute), no party shall commence any Court or arbitration proceedings relating to the dispute unless it has first complied with this clause , except that nothing in this clause will affect either party’s right to terminate this Agreement or to seek urgent equitable relief before an appropriate Court.
A party claiming that a dispute (Dispute) has arisen under or in relation to this Agreement must give written notice to the other party specifying the nature of the Dispute (Dispute Notice).
On receipt of the Dispute Notice by the other party, the parties must endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.
If the parties do not agree within seven (7) days of receipt of the Dispute Notice as to the dispute resolution technique and procedures to be adopted, the timetable for all steps in those procedures, and the selection and compensation of the independent person required for such technique, then the parties must mediate the dispute in accordance with the procedures recommended by the LEADR (Leading Edge Alternative Dispute Resolvers) Chapter in New Zealand.
If the parties fail to resolve the Dispute by mediation, then the Dispute will be referred to arbitration by one arbitrator in accordance with the provisions of the Arbitration Act 1996 or any other Act or statutory provision passed in substitution therefore. It is the intention of the parties that the Dispute shall be resolved in the spirit of co-operation, with a view to continued good relations between the parties.
Privacy
If B C Vault, in providing the Services or otherwise as a result of this Agreement, receives or has access to any personal information (as that term is defined in the Privacy Act 1993), B C Vault must, in respect of that personal information:
comply with the Privacy Act 1993;
only use the personal information for the purpose for which it was originally provided to B C Vault, or as otherwise advised by the Operator from time to time.
Force Majeure
Neither party will be liable to the other for any failure or delay caused by an event of Force Majeure, provided that it complies with this clause. The affected party shall inform the other as soon as it is practicable to do so and shall take reasonable steps to overcome the failure or delay. If the Force Majeure continues for a period in excess of 3 months the non-affected party may terminate this Agreement immediately.
Health and Safety
B C Vault will consult, cooperate and coordinate with the Operator with a view to ensuring both parties comply with their respective obligations under the Health and Safety at Work Act 2015 as they relate to this Agreement.
B C Vault will perform its obligations under this Agreement, in compliance with his obligations under the Health and Safety at Work Act 2015.
General
This Agreement shall be governed by and construed in accordance with New Zealand law and the parties irrevocably submit to the non-exclusive jurisdiction of the New Zealand courts.
Neither party shall assign any of its rights or interests under this Agreement without the prior written consent of the other party.
This Agreement constitutes the entire agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of this Agreement and supersedes and cancels any previous agreement, understanding and arrangement relating thereto whether written or oral.
Any delay, failure or forbearance by a party to exercise (in whole or in part) any right, power or remedy under, or in connection with, this Agreement shall not operate as a waiver of such 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.
Schedule A
Services
B C Vault shall provide the following services with respect to the Operator Buildings:
Schedule B
Operator Buildings
The Operator Buildings are as follows:
