Research First Limited Terms and Conditions
1.1. In these General Terms and Conditions and in any Agreement to which these terms and conditions apply, unless the context otherwise requires:
1.2. Agreement means an agreement to conduct research by Research First for the Client, comprising sections 1 to 5 of this document, these Terms, any schedule attached to this document and any additional terms agreed to in writing and signed by the parties;
1.3. Client means the purchaser of the Services described in section 1 of the Agreement, or any person acting on behalf of and with the authority of that purchaser;
1.4. Confidential Information is information that is by its nature confidential or that either of the parties ought to know is confidential. It includes information that relates to either of the parties’ business affairs. Confidential Information excludes information that is, or becomes, available in the public domain other than by the fault of either of the parties, information which has been independently developed by the receiving party, and information received by the receiving party from a third party without any obligation of confidentiality.
1.5. Fee means the fee payable for the Services as set out in section 4 of the Agreement;
1.6. GST means goods and services tax under the Goods and Services Tax Act 1985;
1.7. Intellectual Property means copyright and all rights conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.
1.8. Research First means Research First Limited;
1.9. Services means the provision of the services set out in section 3 of the Agreement, including a report in relation to the research, surveys or any other work undertaken by Research First.
1.10. Terms means these general terms and conditions as may be amended from time to time.
1.11. These Terms replace all or any other agreements previously reached between the parties in relation to the subject matter of the Agreement.
1.12. In these Terms:
1.13. clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
1.14. words importing the singular include the plural and vice versa;
1.15. a reference to dollars is to New Zealand dollars;
1.16. a reference to a party to this Agreement includes that party’s permitted assigns; and
1.17. a reference to the words ‘including’ and similar words do not imply any limit.
1.18. No agreement will come into existence until both parties have signed the Agreement and a fully executed copy has been received by Research First.
2.1. Subject to payment of the Fee, Research First will supply to the Client and the Client will purchase from Research First, the Services, in accordance with these Terms.
2.2. Research First will, as part of the Services, provide its report in draft for review by the Client before providing the final report.
2.3. If the Client wishes to make changes to the draft report, it must advise Research First of those changes within seven days of the draft report being provided. All requested changes must be reasonable. Research First will discuss with the Client any changes that it does not propose to make in completing the final report.
3. GENERAL OBLIGATIONS
3.1. In providing the Services, Research First shall exercise the degree of skill, care and diligence normally expected of professionals providing services similar to the Services.
3.2. Research First will use suitably skilled, experienced and qualified staff to undertake the Services.
3.3. If any Services are to be preformed on the Client’s premises, Research First must comply with all applicable environment, occupational health and safety laws and the Client’s then current safety and other applicable policies and procedures while on the Client’s premises. The Client must consult, co-operate and coordinate with Research First in relation to health and safety matters.
3.4. The Client shall provide to Research First any information requested by Research First which is required for Research First to perform the Services.
3.5. If the Services involve contacting any person for whom the Client holds the contact details, the Client warrants that it is permitted to provide those contact details to Research First for the purposes of the Services. If the consent of such a person is required to enable Research First to contact the person in connection with the Services or otherwise comply with its obligations under the Agreement, the Client must ensure that it has the consent of that person prior to providing the contact details to Research First. The Client warrants that it has such consents in relation to all contact details that it provides to Research First.
3.6. It is the responsibility of the Client to satisfy itself as to the nature and quality of the Services and their suitability for purpose and the Client accepts the Services on this basis.
3.7. Each party warrants to the other party that it has full legal capacity and power to enter into the Agreement.
4. FEES AND OTHER CHARGES
4.1. The Client will pay to Research First the Fees and any other amount payable under the Agreement.
4.2. The Fee includes the costs of preparing one draft report and one final report. Any subsequent reviews or revisions to the finalised report requested by the Client will be charged at the rate set out in section 4 of the Agreement.
4.3. The Client acknowledges that where the Fee is quoted as being an estimate only, the actual price of the Services invoiced by Research First and payable by the Client may be higher. Research First will use all reasonable endeavours to advise the Client if the price of the Services will exceed the quoted estimate.
4.4. Where the Services are carried out on a time and material charge basis, Research First may charge the Client for any incidental goods and/or services purchased from third parties as are provided for in section 4 of the Agreement or otherwise with prior approval of the Client. Research First shall maintain records which clearly identify the costs incurred.
4.5. Research First reserves the right to correct any typographical or clerical errors in relation to the Fee as specified in section 4 of the Agreement or as otherwise advised to the Client.
5.1. All Fees will be invoiced as set out in section 4 of the Agreement. Unless otherwise stated in section 4 of the Agreement Research First may invoice 60% of the Fees upon signing the Agreement and the remaining 40% of the Fees upon completion of the draft report supplied to the Client. Unless otherwise agreed, Research First may invoice all other amounts payable under the Agreement at such time as the relevant Services are performed or the costs to which those amounts relate are incurred by Research First.
5.2. The Client must pay any GST, and any other sales, use or other taxes (other than taxes on Research First’s net income) that arise or are incurred by Research First in relation to the provision of the Services.
5.3. Payment of the amounts due shall be made in full on or before the payment due date specified on each invoice.
5.4. Time for payment is of the essence and, without prejudice to any other rights of Research First, if the Client fails to pay any undisputed sum payable pursuant to the Agreement when due:
5.5. Research First may do any or all of the following:
5.6. treat the Agreement as repudiated by the Client;
5.7. until payment in full is made, suspend performance of the Services;
5.8. add interest to the amount owing at the default interest rate of 2% above the current base lending rate set from time to time by Research First’s bankers, payable daily until payment is received; and
5.9. the Client will be liable for all reasonable third party expenses and costs (including legal costs and debt collection costs) in relation to Research First enforcing or attempting to enforce the Agreement.
5.10. Receipt of a cheque or other negotiable instrument shall not constitute payment until such negotiable instrument is cleared in full.
5.11. The Client is not entitled to make any deduction from the price of the Services in respect of any set-off or counterclaim or to withhold any payment.
6.1. For the purposes of the Privacy Act 1993, the Client agrees that Research First may collect and hold personal information in respect to the Client’s staff for the purposes of carrying out the Services, administering the Client’s account, Research First’s own marketing purposes and for any other purposes advised to the person at the time of collection.
6.2. The Client will ensure that it has all relevant consents needed from its staff in order for Research First to collect and hold the personal information of such person under clause 6.1.
6.3. Any information held by Research First about the Client’s staff may be accessed and, where incorrect, corrected by the Client or its staff in accordance with the Privacy Act 1993.
7.1. A party (“receiving party”) receiving the Confidential Information of the other party (“disclosing party”) will:
7.2. only use the Confidential Information of the disclosing party for the purposes of the Agreement and not for any other purpose;
7.3. not (except with the disclosing party’s prior written approval or where required to do so by law) disclose the Confidential Information to anyone other than its:
7.4. personnel or related entities who have a need-to-know for the purposes of fulfilling the receiving party’s obligations under the Agreement or to obtain the full intended benefit of the Agreement; and
7.5. professional advisors, upon obtaining a similar undertaking of confidentiality from such advisors;
7.6. ensure that its relevant personnel and related entities are made aware of the confidentiality obligations of the receiving party under the Agreement and are bound by a corresponding confidentiality obligation; and
7.7. on discovery of any beach of this clause 7.1 by the receiving party or any person in possession of Confidential Information of the disclosing party through the receiving party, immediately notify the disclosing party of such breach and co-operate with the disclosing party in every reasonable way to help the disclosing party regain possession of the confidential information and prevent its further unauthorised use or disclosure.
7.8. A party who discloses the other party’s Confidential Information to any other person will be responsible for the acts and omissions of that other person as if they were its own acts and omissions.
7.9. Neither party shall make or permit any public announcement or disclosure of any sort regarding the Agreement without the prior written consent of the other party, provided that this clause 7.3 does not restrict any disclosure that Research First must make in the course of carrying out the research or surveys contemplated by the Services..
7.10. The receiving party will maintain effective security measures, including at a minimum the same measures as the receiving party uses to protects its own Confidential Information, which in any event must be not less than reasonable measures, to protect all Confidential Information of the disclosing part to which it may have access from unauthorised use, copying and disclosure.
7.11. Each party will on expiry or earlier termination of the Agreement, on demand, deliver to the other party all Confidential Information and any other documents or information owned by the other party and supplied by or obtained from the other party in connection with the Agreement, except where the Agreement contemplates that the receiving party may retain them.
7.12. If any Confidential Information to which clause 7.5 applies is stored on the systems of the receiving party and so is not capable of being returned, the receiving party must delete that Confidential Information from its systems and backups instead of returning it.
7.13. Confidential Information retained by a receiving party remains subject to the confidentiality obligations of this clause 7.
8. INTELLECTUAL PROPERTY AND DATA RIGHTS
8.1. Intellectual Property owned by, or developed by Research First prior to the commencement of the Agreement or independently of the Agreement remains the property of Research First.
8.2. Intellectual Property owned by, or developed by the Client prior to the commencement of the Agreement or independently of the Agreement remains the property of the Client.
8.3. Any Intellectual Property created by Research First in the course of carrying out the Services, including research and/or survey methodologies and designs, and in any report provided by Research First shall be owned by Research First.
8.4. Research First grants to the Client an unrestricted, non-exclusive, royalty free license in perpetuity to copy or use for the Client’s internal business purposes only any Intellectual Property owned by Research First that is in any report provided by Research First to the Client.
8.5. Research First does not warrant the suitability of any Intellectual Property licensed to the Client for any purpose, other than the Services or any other use stated in the Agreement.
8.6. Research First remains the owner of any data and all other information collected by Research First, even if it is included in the report provided by Research First to the Client. Unless otherwise agreed by the parties, Research First is not required to include any of the underlying data or other information collected by Research First in its report. The Client may only use the report provided by Research First for its internal business purposes only.
9. VARIATION REQUEST
9.1. The Client may, at any time, request a variation to all or part of the Services by providing written notice to Research First.
9.2. Promptly following such a request, the parties will meet to discuss the requested variation. Research First will not unreasonably refuse any reasonable variation, provided that the Client pays any additional charges that arise as a result of implementing the variation. No requested variation will take effect unless it is agreed in writing between the parties.
10. LIMITATION OF LIABILITY
10.1. To the fullest extent permitted by law:
10.2. Research First will not be liable to the Client for any indirect or consequential loss, loss of profit, loss of reputation, loss of opportunity, loss of data, loss of savings or any kind of special loss or damage however arising, or for punitive or exemplary damages whatsoever arising out of or in connection with the Agreement;
10.3. if Research First is held liable to the Client, whether in contract, tort (including negligence) or otherwise, then its liability is limited to an amount equal to the amount that the Client has paid to Research First under the Agreement
10.4. Notwithstanding any other term of the Agreement, Research First will not be liable to the Client for any reliance on the outcomes of the Services or the results set out in the reports it has provided to the Client, or any actions taken by the Client as a result of such outcomes and reports.
10.5. The parties agree that where the performance of the Services under the Agreement is a supply for business purposes that the provisions of the Consumer Guarantees Act 1993 do not apply.
11. INDEMNITY AND INSURANCE
11.1. The Client indemnifies Research First against all costs, claims, demands, expenses and liabilities of any nature, including claims for damage to property that Research First incurs or suffers as a result of the Client’s negligence or breach of the Agreement.
11.2. Research First will during the term of the Agreement maintain professional indemnity insurance for an amount appropriate to its obligations in carrying out the Services.
12. TERM, TERMINATION AND SUSPENSION
12.1. The Agreement will start when both parties have signed the Agreement and, unless terminated earlier, will end upon completion of the Services or such other date as may be agreed by the parties.
12.2. Either party may terminate the Agreement by providing 10 Business Days’ written notice to the other party.
12.3. Either party may terminate the Agreement by notice in writing to the other party if the other party:
12.4. breaches any term or condition of the Agreement and does not remedy that breach within 10 working days of notice of the breach;
12.5. becomes insolvent, has a receiver appointed, makes or is likely to make an arrangement with its creditors or has a liquidator appointed or is placed under statutory management; or
12.6. ceases or threatens to cease carry on business.
12.7. Research First may terminate the Agreement by notice in writing to the Client if the ownership or effective control of the Client’s business is materially altered (other than as a result of amalgamation within the Client’s group of companies) or transferred to another person without the consent of Research First.
12.8. Without limiting its other rights, Research First may temporarily suspend the Services if the Client is in breach of the Agreement, provided that such suspension is only until such time as the breach has been remedied by the Client.
12.9. Upon temporary suspension or termination of the Agreement, all amounts outstanding under the Agreement, whether or not due for payment, shall immediately become due and payable.
12.10. Termination of the Agreement shall not prejudice or affect either of the parties’ accrued rights or claims and liabilities up to the effective date of termination.
12.11. Clauses which by their nature are intended to survive expiry or termination of the Agreement, including clauses 7, 8, 10, 11 and 12, shall continue in force.
13.1. In the event that a dispute or difference between the parties in relation to or arising out of the Agreement cannot be settled by negotiation between the parties, the dispute or difference may, if the parties agree, be referred to mediation to be held in Christchurch in accordance with the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc in force at the time the dispute is referred to mediation. The parties shall agreed on the mediator and if they fail to agree, then a mediator will be appointed by the President of the Arbitrators’ and Mediators’ Institute of New Zealand Inc, upon the request.
13.2. If the dispute is not resolved within 20 working days after the date of referral to mediation, then either party may instigate other proceedings.
14. GENERAL PROVISIONS
14.1. If any part of the Agreement is held to be unenforceable, the part concerned will be deleted or modified to the minimum possible extent necessary to ensure that the remainder of the Agreement remains enforceable.
14.2. No delay or failure by either party to exercise its rights under the Agreement operates as a waiver of those rights.
14.3. Neither Party shall be liable for failure or delay to perform its obligations under this Agreement if the delay or failure is beyond its reasonable control.
14.4. Neither Party may assign or transfer any of its rights or obligations under or in connection with the Agreement to any third party without the prior written consent of the other party
14.5. Research First reserves the right to sub-contract the performance of the Services to any other person.
14.6. A notice given by a party under the Agreement must be delivered to the address details set out in section 1 of this Agreement.
14.7. Any variation to the Agreement must be agreed in writing between the parties.
14.8. The Client agrees that Research First may obtain information about the Client from any source including credit assessment and debt collecting and the Client consents to any person providing Research First with such information.
14.9. The Agreement will be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand Courts.