Terms of business

Last updated: May 01, 2024

SECTION A: AGREEMENT AND KEY DETAILS

AGREEMENT

The Principal engages the Agent, and the Agent agrees to provide the Services on the terms of the Agreement. The Agreement comprises: Section A (Agreement and Key Details), including this cover page and the signature clause; and Section B (General Terms, including the Schedule). Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

KEY DETAILS:

Services

The Agent agrees to provide relieving/casual Early Childhood Education (ECE) teaching staff services to the Principal.

Requirements

The Agent agrees to provide to provide relieving and or casual Early Childhood Education (ECE) teaching staff services to the Principal as requested and as required by the Principal for the duration of the agreement. The Principal agrees to provide adequate notice to the Agent of its staffing requirements before one day.

Fees

Amount: Unless rate is otherwise agreed, the Principal agrees to pay the Agent the fees listed below from NZD $-$ (Plus GST) per hour for Early Childhood Education (ECE) teaching staff services. The rate is dependent on the qualifications, registration and experience of the reliever. Invoices The Agent will invoice the Principal for Early Childhood Education (ECE) teaching staff services. The Principal agrees to pay the Agent for all recorded Early Childhood Education (ECE) teaching staff services hours. The Agent may invoice the Principal for Early Childhood Education (ECE) teaching staff services weekly, in arrears. The Principal, upon receipt of a detailed (itemized) invoice from the Agent, will arrange payment to the Agent of the invoices.

Specific Terms

The Principal acknowledges and agrees that the Principal’s obligations to the Agent for the provision of the Services:

• The minimum relieving shift is 4 hours.
• A minimum of 2 hours notice is required for cancellations. If you cancel within this timeframe, you will be charged 4 hours for the reliever plus the administration fee. If the reliever is able to be sent to another job that day, this may be waived.
• If the reliever has relieved at your centre in the past 6 months or the relievers details are provided to you for a role you have available and you contract the reliever as a permanent employee or an independent contractor or introduce the reliever to another centre/organization who contracts them as an employee or an independent contractor, a placement fee will be charged as follows:

All Qualified teachers – NZD $$ + GST  Unqualified teachers – NZD $$ + GST 20% of the fee will be passed on to the reliever to honor and recognise the reliever’s contribution to the Agent. This clause applies whether at the time of acceptance of employment/contract the reliever is currently relieving for the Agent. To be considered as qualified, the qualification must meet the Ministry of Education criteria and be registered and certified with the Education Council.

SECTION B: GENERAL TERMS

1 INTERPRETATION

1.1 Definitions: In the Agreement, the following terms have the stated meaning:

Agreement

Section A (Agreement and Key Details, including the cover page and signature clauses) and Section B (General Terms, including the Schedule).

Principal IP

has the meaning given in clause 3.1.

Principal’s Network

includes the Principal’s customers, suppliers, personnel, and other third parties with whom the Principal deals commercially.

Confidential Information

all information that is not in the public domain and that is developed, created, or acquired by the Agent in the provision of the Services or otherwise in connection with the Agreement, including:

1. the terms of the Agreement;
2. details of the Principal’s Network;
3. business and technical information about the Principal and/or the Principal’s Network;
4. computer software (in object and source code form) and materials owned or licensed to the Principal and/or the Principal’s Network;
5. data held by the Principal and/or the Principal’s Network;
6. Intellectual Property of the Principal; and
7. any other information about the Principal’s business, including records of the Principal

Start Date

the start date set out in the Key Details.

End Date

the end date set out in the Key Details.

Fees

the fees set out in the Key Details, up to the cap (if any) stated in the Key Details.

Force Majeure

an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care.

Intellectual Property Rights

includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning and includes the Deliverables and other outputs and work to which Intellectual Property Rights attach.

Key Details

the Agreement specific details set out in Section A of the Agreement.

Requirement

any requirement set out in the Key Details or advised by the Principal before or during the provision of the Services and Deliverables.

Services

the services set out in the Key Details, including:

1. All actions and work not set out in the Key Details but reasonably required to perform those services.

1.2 Interpretation: In the Agreement:

1. clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
2. words in the singular include the plural and vice versa;
3. a reference to:
   • a party to the Agreement includes that party’s permitted assigns;
   • personnel includes officers, employees, Agents, and agents, but a reference to the Principal’s personnel does not include the Agent;
   • a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
   • including and similar words do not imply any limit; and
   • a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
4. no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party; and
5. if there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.

2 OBLIGATIONS

2.1 General: In addition to the other obligations of the Agreement, the Agent must:

1. provide the Services:
   1. promptly, efficiently, and exercising reasonable care, skill and diligence; and
   2. in accordance with:
      • the Agreement, including any Requirements;
      • best currently accepted principles and practices applicable to the Services; and
      • all applicable laws and professional codes of conduct or practice;
2. ensure that the Agent, any individual named in the Key Details, and all sub-Agents have all qualifications, licenses, accreditations, and approvals needed to provide the Services
3. ensure the Services are fit for the purpose (if any) advised by the Principal in advance and in writing; and
4. report to the Principal on the progress of the Services as required by the Principal.

2.2 Conflict of interest:

1. The Agent must avoid any interest that may conflict with the Agent’s performance of the Agreement, including:
   1. any situation that could give rise to a conflict of interest or compromise the Agent’s or the Principal’s integrity; and/or
   2. any financial or other interest or undertaking that could interfere with the performance of the Agent’s obligations under the Agreement.
2. The Agent must immediately advise the Principal in writing of any breach of clause 2.2a or of any situation or undertaking that could, if entered into by the Agent, breach that clause.

2.3 Key personnel:

1. The Principal must ensure that any individuals are suitably skilled, experienced and qualified.
2. On or before the Start Date, the Agent must obtain the individual’s agreement to the terms set out in the Schedule to the Agreement.

2.4 Breach:

Without limiting the Principal’s other rights and remedies, if the Principal considers that the Services have not been provided in accordance with the Agreement, the Principal may:

1. require the Agent to immediately fix the breach;
2. withhold any Fees due to the Agent until the breach is fixed; and/or
3. deduct a reasonable amount from any Fee due to the Agent to reflect the breach.

3 INTELLECTUAL PROPERTY

3.1 General:

1. All Intellectual Property Rights in the following items (together, Principal IP)are owned by the Principal from the date the items are created, produced or worked on:
   1. Confidential Information; and
   2. any Intellectual Property created, produced, or worked on by the Agent or its personnel during the term of the Agreement:
      • in the circumstances described in clause 3.1b; or
      • that is relevant to the business or operation of the Principal, unless the Principal has agreed otherwise in writing.
2. The circumstances are:
   1. in the provision of the Services;
   2. at the Principal’s premises; and/or
   3. using any resource, equipment, or information (including Confidential Information) of the Principal.

3.2 No breach:

The Agent must ensure that Principal IP created, produced or worked on by the Agent or their personnel do not infringe any third party’s intellectual property rights.

3.3 Assignment clause:

1. From the date the relevant Principal IP was created, produced or worked on, the Agent assigns to the Principal all of the Agent’s rights, title and interest in and to the Principal IP. The Agent must procure its personnel’s compliance with this clause. The Agent must do any further thing and sign any document required by the Principal to give effect to clause 3.3a.

4 FEES

4.1 Fees:

The Principal must pay the Fees to the Agent for providing the Services.

4.2 Invoicing and payment:

1. The Agent must provide the Principal with valid GST tax invoices on the dates set out in the Key Details, or if there are none, monthly for Services provided in the previous month.
2. The invoice must include:
   1. the details of the Services to which the invoice relates;
   2. the number of hours or days worked by the Agent or its sub-Agents; and
   3. any other information reasonably required by the Principal.
3. The Fees exclude GST, which the Principal must pay on taxable supplies under the Agreement.
4. Unless the Services have not been provided to the Principal’s reasonable satisfaction, the Principal must pay the Agent’s correct invoice by the end of the week following receipt.

4.3 Expenses:

Subject to any restriction in the Key Details, the Principal must reimburse the Agent for any expense listed in the Key Details where the expense has been:

1. incurred in providing the Services; and
2. approved by the Principal in advance.

5 CONFIDENTIALITY

5.1 Security: The Agent must:

1. keep confidential at all times the Confidential Information and must not directly or indirectly use, disclose or distribute the Confidential Information except to the extent required for the Agent to properly perform the Agent’s obligations under the Agreement.

5.2 Return of information:

At the Principal’s request, the Agent must return to the Principal or destroy (at the Principal’s option) all Confidential Information in the Agent’s control.

6 LIABILITY

6.1 Maximum liability:

The maximum aggregate liability of either party under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid and/or payable by the Principal under the Agreement for Services properly provided in accordance with the Agreement.

6.2 Unrecoverable loss:

Except for the Principal’s liability to pay the Fees, neither party is liable to the other under or in connection with the Agreement for any:

1. loss of profit, revenue, savings, business and/or goodwill; or
2. consequential, indirect, incidental or special damage or loss of any kind.

6.3 Unlimited liability:

Clauses 6.1 and 6.2 do not apply to limit:

1. the Principal’s liability for:
   1. personal injury or death; or
   2. fraud or wilful misconduct; or
2. the Agent’s liability for:
   1. a breach of clause 3, and/or 5; or
   2. the matters stated in clauses 6.3ai and 6.3aii.

6.4 No liability for the other’s failure:

Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

6.5 Mitigation:

Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

7 TERM AND TERMINATION

7.1 Duration:

Unless terminated under this clause 7, the Agreement starts on the Start Date and continues until the End Date. If there is no End Date, the Agreement continues until it is terminated under this clause 7.

7.2 No fault termination:

Either party may terminate the Agreement in no less than 90 days’ prior notice to the other party. The termination can be varied by the written agreement of both parties.

7.3 Other termination rights:

Either party may, by notice to the other party, immediately terminate the Agreement if the other party:

1. breaches any material provision of the Agreement and the breach is not:
   1. remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or
   2. capable of being remedied;
2. is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure; or
3. where the Agent is the other party:
   1. does or omits to do something that, in the Principal’s opinion, may damage the business or reputation of the Principal;
   2. 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
   3. has given or gives the Principal any information that is misleading or inaccurate.

7.4 Consequences of termination or expiry:

1. Termination or expiry of the Agreement does not affect either party’s rights and obligations accrued before that termination or expiry.
2. The Principal must pay for Services properly provided before that termination or expiry.
3. Within 3 days of that termination or expiry, the Agent must provide to the Principal or destroy (at the Principal’s option) all Confidential Information and/or Principal Intellectual Property in the Agent’s control, including documents, data, software, works in progress and other materials.

7.5 Obligations continuing:

Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 3, 5, 6, 7.4, 7.5, and 8, continue in force.

8 DISPUTES

8.1 Good faith negotiations:

Before taking any Court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations

8.2 If either party has any dispute with the other in connection with this Contract:

1. That party will promptly give full written particulars of the dispute to the other.
2. The parties will promptly meet together and in good faith try and resolve the dispute.

1. If the dispute is not resolved within 7 days of written particulars being given (or any longer period agreed to by the parties) the dispute will be referred to mediation.
2. A party must use the mediation procedure to resolve a dispute before commencing any other dispute resolution proceedings.
3. The mediation will be conducted by a LEADER New Zealand Resolution Institute mediator chosen by the parties or, if they cannot agree, by the President of the New Zealand Law Society or the President’s nominee.
4. The parties will meet the cost of the mediation equally.
5. If the dispute is not resolved by mediation, either party may refer the dispute to a single arbitrator.
6. The single arbitrator will be chosen by the parties or, if they cannot agree, by the President of the New Zealand Law Society, or the President’s nominee.
7. The arbitration will be conducted in accordance with the Arbitration Act 1996.
8. The cost of arbitration will usually be met by the parties equally, or as determined by the arbitrator in accordance with the Arbitration Act 1998.
9. The parties must always act in good faith and co-operate with each other to promptly resolve any dispute.
10. The procedures and time frames for any mediation or arbitration will be fixed by the mediator or arbitrator (as appropriate) if the parties cannot agree.

8.3 Obligations continue:

Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.

8.4 Right to seek relief:

This clause 8 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

9 GENERAL

9.1 Force Majeure:

Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:

1. immediately notifies the other party and provides full information about the Force Majeure;
2. uses best efforts to overcome the Force Majeure; and
3. continues to perform its obligations to the extent practicable.

9.2 Waiver:

To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

9.3 Independent Agent:

1. The Agent is an independent Agent of the Principal. No other relationship (e.g. employment, joint venture, agency, trust or partnership) exists under the Agreement.
2. Without limiting clause 9.3a, the Principal has no liability to meet any of the Agent’s obligations under the Health and Safety at Work Act 2015 or to pay the Agent:
   1. holiday pay, sick pay or any other payment under the Holidays Act 2003;
   2. redundancy or any other severance pay; or
   3. other than GST on taxable supplies under the Agreement, taxes or levies, including any levy under the Accident Compensation Act 2001.
3. The Agent indemnifies the Principal against any tax, levy, penalty, damage or compensation which the Principal may be liable to deduct, withhold or pay by reason of the Agent being held to be an employee of the Principal.

9.4 Notices:

A notice given by a party under the Agreement must be delivered via email to an email address notified by the other party for this purpose. If the notice is given by the Agent under clause 7, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the Principal.

9.5 Severability:

1. If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
2. If modification under clause 9.5a is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.

9.6 Variation:

Any variation to the Agreement must be in writing and signed by both parties.

9.7 Entire agreement:

The Agreement set out everything agreed by the parties relating to the Services and Deliverables, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.

9.8 Subcontracting and assignment:

The rights and obligations of the Agent under the Agreement are personal to the Agent and may not be assigned, notated, subcontracted or transferred.

9.9 Law:

The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the jurisdiction mediation through the LEADR Dispute Resolution service in relation to any dispute connected with the Agreement.

9.10 Counterparts:

The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy to the other party.