Terms and Conditions of Research Contracts – Version One 2010
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These Terms and Conditions of Research Contracts (“Terms and Conditions”) set out the terms and conditions on which the Parties agree the Researcher is to carry out Research Services for the Ministry of Fisheries (“the Ministry”).
Part 1: Contractual Documents, Effective Date, Definitions and Interpretation
Part 2: Researcher to carry out Research Services for the Ministry
Part 3: Other Obligations of the Researcher concerning Research Services
Part 4: Ministry to pay for Research Services and provide Information
Part 5: Additional Financial Matters
Part 6: Relationship between the Ministry and the Researcher
Part 7: Confidentiality and Intellectual Property
Part 8: Uncontrollable Events (Force Majeure)
Part 9: Completion of Research Services, Suspension and Termination
Part 10: General Provisions
PART 1: CONTRACTUAL DOCUMENTS, EFFECTIVE DATE, DEFINITIONS AND INTERPRETATION
1.1 The contract between the Researcher and the Ministry in relation to the Research Services (the “Contract”) is comprised of the following documents:
1.1.1 these Terms and Conditions of Research Contracts, being Parts 1 to 10;
1.1.2 the Ministry’s Instructions on Conducting Research with the Ministry;
1.1.3 the Researcher’s Tender, the Researcher’s Proposal, and the Researcher’s Submission and any written variation of these documents that the Ministry and the Researcher have agreed to;
1.1.4 the Ministry’s Contract Acceptance Letter; and
1.1.5 the Ministry’s Submission Information and Instructions,
as amended from time to time in accordance with clauses 2.12 to 2.16 or clause 10.1.
The Contract constitutes the entire understanding and agreement between the Parties concerning the subject matter of the Contract and supersedes all or any prior oral or written understandings, commitments, negotiations, representations, warranties, conditions, promises, undertakings, arrangements or other statements at any time expressed or implied. No oral or written modifications of the Contract will be of any force or effect unless and until such modification is in writing and formally executed by the Parties.
The documents above are listed in descending order of priority; so 1.1.1 has priority over 1.1.2 and so on. In the event of conflict between the documents the document with the higher priority shall prevail.
Effective Date of Contract
1.2 The Contract comes into effect on the date on which the Ministry signs the Ministry’s Contract Acceptance Letter (or on such other date referred to in that acceptance letter).
1.3 The following definitions set out the meaning of certain words used in the Contract. For the purposes of the Contract, unless the context otherwise requires:
“Chief Executive” means the Chief Executive for the time being of the Ministry of Fisheries;
“Cost Recovery Consultation” means the consultation undertaken by the Ministry in accordance with the obligations imposed by the “Principles for Management of Under and Over Recovery of Cost Recovery Levies”;
“Fisheries Legislation” means the Fisheries Act 1983, the Fisheries Act 1996 and all regulations and other subordinate legislation made under those Acts;
“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” includes:
(a) any trademark, patent, invention, design, copyright, know-how, trade secret, plant variety right or new animal species, whether registrable or unregistrable;
(b) any right of a similar or analogous nature to any of the above; and
(c) any right and interest or licence to use any of the above;
“Material Clause of the Contract” includes clauses 2.2 to 2.6 (inclusive), 2.9, 2.10, 3.1 to 3.6 (inclusive), 3.8, 3.9, 3.11, 3.13, 3.15 to 3.17 (inclusive), 7.1, 7.3, 7.4, 7.8 and 9.1;
“Milestone” means an event, date or other circumstance or circumstances set out as a Milestone in the Contract;
“Ministry” means Her Majesty the Queen in right of New Zealand acting by and through the Chief Executive of the Ministry of Fisheries;
“Ministry’s Contract Acceptance Letter” means the Ministry’s written acceptance of the Researcher’s Tender, Researcher’s Proposal or Researcher’s Submission, as amended by any correspondence, or other document, in which the Ministry and the Researcher have agreed to vary the Tender, Proposal or Submission;
“Party” means the Researcher and the Ministry as the case may be and “Parties” means both of them;
“Project Update Report” means the written report that may be required by the Ministry as a condition of the Contract;
“Researcher” means the person or organisation named as the Researcher in the Researcher’s Tender, Researcher’s Proposal or Researcher’s Submission;
“Research Material” means all designs, notes, reports, publications, other writing, computer programmes and data in whatever form or format including specimens, Samples, graphics, photos, drawing, digital images (including supporting data) in relation to the Research Services (or any part of them) undertaken, created, enhanced, developed or modified by the Researcher or any other person the Researcher is responsible for or has contracted with;
“Research Products” means all information, reports and other written material, methodologies and other items produced by the Researcher to the Ministry as a result of the Research Services. It does not include any Intellectual Property the Researcher owned prior to carrying out the Research Services, but which may have been utilised in providing the Research Products;
“Researcher’s Proposal” and “Proposal” means the proposal for Research Services given by the Researcher in response to the Ministry’s request for Proposal;
“Research Services” and “Services” means the services to be carried out by the Researcher under the Contract as may be varied under clause 2.12 to 2.15 or clause 10.1 (including providing any reports, seminars, presentations, and attendances required by the Contract) and includes any part of those Services;
“Researcher’s Submission” and “Submission” means the submission for Research Services given by the Researcher in response to the Ministry’s request for Submission;
“Researcher’s Tender” and “Tender” means the tender for Research Services given by the Researcher in response to the Ministry’s request for Tender;
“Samples” means biological and physical materials collected as a result of the provision of the Services;
“Work In Progress Report” means the report that documents the percentage complete for each Milestone which must be submitted on a monthly basis; and
“Working Day” means any day other than:
(a) a Saturday, Sunday or a statutory public holiday within the meaning of section 44 of the Holidays Act 2003; and
(b) a day in the period commencing on 25 December in any year and ending on 15 January in the following year.
1.4 For the purposes of the Contract, unless the context otherwise requires:
1.4.1 references to clauses are references to clauses of these Terms and Conditions;
1.4.2 references to the singular include the plural and vice versa;
1.4.3 headings are inserted for convenience only and do not affect the interpretation of these Terms and Conditions;
1.4.4 references to “written” and “in writing” include any means of permanent visible representation;
1.4.5 references to a “person” include any individual, company, corporation, firm, partnership, joint venture, association, trust, in each case whether or not having separate legal personality;
1.4.6 references to a Party include that party’s successors, executors, administrators and permitted assignees (as the case may be);
1.4.7 references to any document include all written variations agreed to by the Parties and replacement documents from time to time;
1.4.8 any reference to a statute or regulations is a reference to that statute or those regulations as amended or replaced; and
1.4.9 where, under these Terms and Conditions, a word or expression is defined, other parts of speech and grammatical forms of that word or expression have corresponding meaning.
PART 2: RESEARCHER TO CARRY OUT RESEARCH SERVICES FOR THE MINISTRY
Preparation for carrying out the Research Services
2.1 The Researcher acknowledges that:
2.1.1 the Researcher has:
(a) fully reviewed and agreed to these Terms and Conditions; and
(b) made appropriate allowance (including in its Tender, Proposal or Submission) for financial and other resources to ensure it can perform its obligations under the Contract;
2.1.2 the Ministry shall not consider any claim by the Researcher for additional financial or other resources the Ministry has not agreed to provide under the Contract; and
2.1.3 [the Ministry is not obliged, by virtue of the Contract, to solely use the Researcher in relation to the Research Services. The Ministry may enter into agreements with other persons for the provision of the Research Services or other services].
Research Services shall be carried out in accordance with contractual requirements
2.2 The Researcher shall carry out the Research Services for the Ministry in accordance with the requirements (including the time, performance, quality and other requirements) set out in the Contract.
Standard of the Research Services
2.3 The Researcher shall ensure the Research Services:
2.3.1 are carried out using a high standard of professional skill, efficiency and diligence and in accordance with the standards of practice (including any scientific, ethical and commercial practice) applicable to those Research Services; and
2.3.2 meet the performance objectives, standards and Milestones specified in the Contract.
Researcher shall use specified methodology and resources
2.4 The Researcher shall ensure the methodology, facilities and other resources that the Contract requires will be used in carrying out the Research Services are used by the Researcher to perform the Research Services.
2.5 The Researcher shall ensure the particular scientists or other persons identified in the Contract as the persons responsible for carrying out the Research Services (“Nominated Researchers”) perform the Research Services.
Project Manager shall be appointed
2.6 The Researcher shall appoint as project manager (“Project Manager”) the person identified in the Tender, Proposal or Submission as the Project Manager.
Project Manager’s role
2.7 The Project Manager has the following responsibilities:
2.7.1 to be the primary contact person for the Ministry in relation to the Research Services;
2.7.2 to ensure the Researcher carries out the Research Services, and performs its obligations under the Contract, in accordance with the requirements set out in the Contract;
2.7.3 to ensure the Researcher:
(a) complies with its obligations under clauses 3.8 and 3.9 in relation to insurance; and
(b) provides the reports required under the Contract or reasonably requested by the Ministry;
2.7.4 to ensure the Researcher provides the Ministry with an invoice for all payments required to be made by the Ministry under the Contract; and
2.7.5 to ensure the Researcher pays all invoices received by the Researcher from any subcontractors or agents who carry out the Research Services.
Project Manager’s authority
2.8 The Project Manager has the authority to:
2.8.1 provide to the Ministry, on behalf of the Researcher, all reports and other information to be provided by the Researcher to the Ministry under the Contract (except if verification by a Principal Investigator is required under clause 2.10 or if the Contract requires another person to provide the report or information); and
2.8.2 make a request in writing to the Ministry to vary the Contract under clause 2.12.
Principal Investigator shall be appointed
2.9 The Researcher shall appoint as principal investigator in relation to the Research Services (“Principal Investigator”) the particular scientist or other person specified in the Contract as the person who will verify the Research Services.
Research Services shall be verified by the Principal Investigator
2.10 The Researcher shall ensure the Principal Investigator personally verifies the Research Services:
2.10.1 in writing and in the manner and form specified in the Contract; and
2.10.2 at, or by, the Milestones specified in the Contract.
Change of personnel
2.11 The Researcher may replace a Nominated Researcher, Project Manager or Principal Investigator if:
2.11.1 the replacement person is a person of appropriate skills, experience, competence and reputation; and
2.11.2 the Ministry gives its prior approval in writing to that replacement (which approval shall not be unreasonably withheld).
Ministry or the Researcher may request that Research Services be changed
2.12 At any time until the Research Services are completed, either Party may request a variation to the existing Research Services, including additional Research Services and changes to the start and end dates, by sending the other Party a notice in writing that gives a clear and detailed description of the variation that the Party is requesting.
2.13 The Researcher must submit the contract variation request as soon as they become aware of the circumstances that would result in a failure to complete the Milestones by the required due date. This variation request must be submitted in writing (including by email). A request for a variation for a required due date must be produced within sufficient time, prior to the original due date, so that there can be an effective review of the decision to grant an extension.
2.14 When the Ministry requests the variation, the chief scientist must provide the Researcher with the request as soon as they become aware of the change in circumstance.
Once in receipt of the variation, the Researcher shall, within 10 Working Days (or other such period as the Parties may agree) provide the Ministry with a clear and detailed assessment of the changes that would result from the variation including any:
2.14.1 alteration in the payments to be made by the Ministry for the Research Services;
2.14.2 alteration to the timetable for completion of the Research Services; and
2.14.3 other changes to the Contract.
2.15 The Ministry, upon receiving a variation request from the Researcher, shall, if there are no [cost recovery cost issues], within 10 Working Days of receiving the variation, or such other period as the Parties may agree, accept or reject the variation. If Cost Recovery Consultation is required then the Ministry shall, within 30 Working Days of receiving the variation, or other such period as the Parties may agree, accept or reject the variation.
2.16 The variation will constitute an amendment to the Contract on written acceptance by an authorised person within the Ministry and the Researcher.
Failure to carry out Research Services in accordance with contractual requirements
2.17 If at any time the Research Services:
2.17.1 are not carried out in accordance with clause 2.3.1;
2.17.2 do not meet the performance objectives, standards and Milestones referred to in clause 2.3.2;
2.17.3 are not carried out using the methodology, facilities and other resources that are required to be used in accordance with clause 2.4; or
2.17.4 are not carried out by Nominated Researchers in accordance with clause 2.5,
the Ministry may, at the Ministry’s option and without limiting its other remedies:
2.17.5 require the Researcher to immediately refund to the Ministry any payment made by it that is attributable on a proportionate basis to any Research Services to which any of clauses 2.17.1 to 2.17.4 apply (“Defective Services”); and
2.17.6 require the Researcher to immediately carry out in accordance with the relevant requirements under the Contract any Services which the Ministry notifies the Researcher are Defective Services , and withhold any payment to the Researcher relating to the Defective Services until the Defective Services have been, in the reasonable opinion of the Ministry, remedied satisfactorily.
PART 3: OTHER OBLIGATIONS OF THE RESEARCHER CONCERNING RESEARCH SERVICES
Project Update Reports, Work in Progress Reports and other information shall be provided
3.1 The Researcher shall:
3.1.1 provide the Ministry with Project Update Reports and Work in Progress Reports in accordance with the relevant requirements under the Contract;
3.1.2 provide the Ministry (as soon as reasonably practicable) with any reports and other administrative information in relation to the Research Services the Ministry from time to time reasonably requests;
3.1.3 after reasonable notice from the Ministry, provide the Ministry with access, at any reasonable time, to its premises and records;
3.1.4 consult with and keep the Ministry informed about all aspects of the Research Services as appropriate or as reasonably required by the Ministry; and
3.1.5 comply with the reasonable directions of the Ministry in performing its obligations under the Contract,
to enable the Ministry to monitor the Researcher’s performance of its obligations under the Contract.
English language shall be used
3.2 All communications between the Parties and all reports, documents and information in connection with or under the Contract sent by one Party to the other and all Research Products shall be in English unless otherwise agreed in writing by the Ministry.
Records of Research Services shall be kept
3.3 The Researcher shall keep full and accurate records of all Research Services carried out.
Legislative obligations shall be complied with
3.4 The Researcher shall carry out the Research Services, and its other obligations under the Contract, in accordance with all applicable legislative requirements including but not limited to:
3.4.1 the Resource Management Act 1991;
3.4.2 the Health and Safety in Employment Act 1992;
3.4.3 the Privacy Act 1993; and
3.4.4 any Fisheries Legislation.
3.5 The Researcher shall, at the Researcher’s expense, give all notices and obtain all consents and approvals required by any enactment for it to lawfully carry out the Research Services and its other obligations under the Contract.
3.6 The Researcher shall notify the Ministry immediately in writing of any failure to comply with clauses 3.4 or 3.5 and give the Ministry full written details of that failure.
Quality assurance and management systems shall be in place
3.7 The Researcher shall ensure that it implements, and has in place at all times for the duration of the Contract, the quality assurance and management systems specified in the Contract.
Insurance shall be obtained
3.8 The Researcher shall ensure that it takes out the insurance policies specified in the Contract for amounts of not less than the minimum amounts specified in the Contract, and those insurance policies shall include (where relevant) insurance policies in relation to the following:
3.8.1 General Liability insurance;
3.8.2 Professional Indemnity insurance;
3.8.3 Marine Liability insurance;
3.8.4 Marine Hull insurance; and
3.8.5 Motor Vehicle Third Party Liability insurance.
3.9 The Researcher shall ensure that each insurance policy taken out under clause 3.8, is at all times for the duration of the Contract:
3.9.1 held with an insurance company that has a registered rating by Standard & Poor’s (Australia) Pty Limited under the Insurance Companies (Ratings and Inspections) Act 1994 of at least AA; and
3.9.2 valid and enforceable.
3.10 The Researcher shall make available for inspection any insurance policy taken out under clause 3.8 promptly upon a written request by the Ministry.
Conflicts of interest shall be avoided
3.11 The Researcher shall not:
3.11.1 create, whether directly or indirectly, any interest or obligation;
3.11.2 acquire any right or property; or
3.11.3 undertake any obligation,
if doing so would create a conflict with its obligations under the Contract, unless the Ministry has given the Researcher its prior written consent. The Researcher represents to the Ministry to the best of its knowledge and belief that at the date of signing the Contract, no conflict of interest exists.
3.12 The Researcher shall immediately notify the Ministry in writing if a conflict with its obligations under the Contract:
3.12.1 existed on the date the Contract came into effect in accordance with clause 1.2 (unless that conflict has been consented to by the Ministry in writing);
3.12.2 has otherwise arisen; or
3.12.3 in the Researcher’s reasonable opinion, may arise.
Fishing shall be in accordance with a special permit
3.13 The Researcher shall, where the Contract requires that fish, aquatic life or seaweed be taken in performance of the Research Services (“Research Fish”), take or arrange for the Research Fish to be taken in accordance with an appropriate special permit or any other authorisation required under the fisheries legislation (“Special Permit”).
3.14 Nothing in this Contract requires the Ministry or the Chief Executive to, or means that the Ministry or the Chief Executive has, issued a Special Permit to the Researcher by accepting any Tender, Proposal or Submission. Where a Special Permit is required to carry out the Research Services, the Researcher must submit an application for a Special Permit to the Ministry in accordance with the Fisheries Act 1996.
3.15 If the Researcher in carrying out the Research Services takes Research Fish under a Special Permit which provides for the sale of such fish, the Researcher shall:
3.15.1 use all reasonable endeavours to:
(a) process all Research Fish taken; and
(b) sell all Research Fish taken at a price based on the greenweight port price of those Fish.
3.15.2 pay to the Ministry the net revenue earned by the Researcher from the sale of the Research Fish, within 10 days of receipt of that revenue by the Researcher. (For the purposes of this clause, “net revenue” means the balance of revenue earned from the sale of the Research Fish after deduction of direct costs and expenses reasonably incurred by the Researcher in relation to the processing and sale of the Research Fish).
3.15.3 insert a Milestone into their Tender, Proposal or Submission to remind them that they must complete and send to the Ministry a return containing the revenue and costs associated with the processing the Research Fish as outlined in clause 3.15.2 within the specified period.
3.15.4 If the Researcher fails to send in the return detailed in clause 3.15.3 the Ministry may withhold all payments due under the Contract until the return is provided to the Ministry.
3.16 If the Researcher in carrying out the Research Services takes Research Fish under a Special Permit which provides for the sale of such fish, the Researcher shall provide the Ministry with an annual report within 20 Working Days of the end of the Researcher’s financial year containing full details of:
3.16.1 the quantities and species of Research Fish taken;
3.16.2 the greenweight port price of Research Fish taken;
3.16.3 the price of Research Fish sold;
3.16.4 the costs and expenses reasonably incurred by the Researcher in relation to the processing and sale of the Research Fish; and
3.16.5 the Research Services that required the Research Fish to be taken.
3.17 The Researcher shall provide the information required by clause 3.16 in addition to any additional information the Researcher is required to provide to the Ministry under the Special Permit.
3.18 The Ministry is not liable to the Researcher for any losses, costs or expenses suffered or incurred by the Researcher in taking or selling Research Fish.
3.19 The Researcher shall advise the Ministry of any change to the criminal record of the Researcher or that of any of its subcontractors or agents during this Contract.
PART 4: MINISTRY TO PAY FOR RESEARCH SERVICES AND PROVIDE INFORMATION
Ministry’s payment obligations
4.1 The Ministry shall pay the Researcher the amount set out in the Contract (“Contract Fee”) for carrying out the Research Services and performing the Researcher’s other obligations under the Contract.
4.2 The Parties acknowledge, to avoid doubt on the matter, that if a dispute arises as to whether the Contract Fee is:
4.2.1 the amount payable by the Ministry set out in the Ministry’s Contract Acceptance Letter; or
4.2.2 the amount payable by the Ministry set out in a variation mutually agreed to in writing by the Parties,
the amount referred to in clause 4.2.2 is to be the Contract Fee for the purposes of clause 4.1.
Payment by Instalments
4.3 Subject to clauses 4.4 and 4.5, the Ministry shall pay the Contract Fee by the instalments (“Instalments”) set out in the Contract.
4.4 The Ministry shall pay the Researcher 90% of any Instalment that is due and payable 20 Working Days after all the matters sets out in clause 4.5 have been met to the Ministry’s satisfaction.
4.5 Subject to clauses 4.4 and 4.11, an Instalment shall be payable only if and when:
4.5.1 the Milestones for that Instalment as set out in the Contract have been achieved;
4.5.2 the Researcher has provided to the Ministry:
(a) an invoice stating the amount of the Instalment, in the correct format as set out in the document called Conducting Research with Ministry of Fisheries;
(b) supporting evidence showing, to the reasonable satisfaction of the Ministry, that the relevant Milestone for payment of that Instalment has been achieved;
(c) confirmation in writing by the Principal Investigator of the achievement of those Milestones where the Contract requires that the Principal Investigator personally verifies the Milestones in respect of that Instalment have been achieved; and
(d) confirmation in writing that the Research Services relating to the Instalment meet the performance objectives and standards set out in the Contract.
Repayment of Instalment
4.6 If the Ministry becomes aware that any Instalment has been paid due to a misrepresentation, omission, or non-disclosure by the Researcher as to achievement of the relevant Milestone or the meeting of the performance objectives and standards in the Contract, the Ministry may request repayment of the relevant Instalment. The Researcher shall repay such an Instalment upon demand being made by the Ministry.
4.7 The balance of the Instalment retained under clause 4.4 shall be payable only if and when:
4.7.1 the Principal Investigator has provided all the personal verification of the Research Services for the Ministry in accordance with clause 2.10; and
4.7.2 the Ministry has advised the Researcher in writing that the Ministry considers the Research Services have been completed in accordance with the Contract.
4.8 The Ministry shall use all reasonable endeavours to advise the Researcher whether or not it considers the Research Services have been completed in accordance with the Contract within 60 Working Days of receipt of the Principal Investigator’s verification of the Research Services. Where the Ministry considers that the Research Services have not been completed in accordance with the Contract, the Ministry shall advise the Researcher of what is required to complete the Research Services.
4.9 Subject to clause 4.10, the Ministry shall pay the Researcher the balance of the Instalment retained under clause 4.4 by the 20th of the month after the month in which the Ministry advises the Researcher in writing it considers the Research Services have been completed in accordance with the Contract.
4.10 Any advice given by the Ministry to the Researcher under clause 4.7.2 stating that the Ministry considers the Research Services have been completed in accordance with the Contract does not prevent the Ministry from at any time alleging, or bringing proceedings alleging, that the Researcher has not completed the Research Services in accordance with the Contract.
Retention of Instalments
4.11 The Ministry may reasonably withhold all or any part of an Instalment if the Researcher has not complied with its obligations under the Contract. Such obligations include the provision of data in accordance with the Ministry’s Submission Information and Instructions.
4.12 If the Ministry disputes any invoice (or part of an invoice) issued by the Researcher then the matter shall be referred to the disputes process under clauses 6.7 to 6.12.
Currency of payments
4.13 All payments to be made by the Ministry under the Contract are expressed in and shall be made in New Zealand currency.
4.14 The Ministry may deduct or withhold from any amounts to be paid to the Researcher any deduction or withholding for or on account of any tax or levy required by law. The amounts paid by the Ministry to the Researcher shall not be “grossed-up” to cover the amount of the tax or levy deducted or withheld.
4.15 All references in the Contract to payments by the Ministry to the Researcher for Research Services, and payments by the Ministry to the Researcher for Research Services, (if any) are GST exclusive.
Ministry to provide information
4.16 The Ministry agrees to use reasonable endeavours to provide the Researcher with any information the Researcher reasonably requests to assist it with carrying out the Research Services.
4.17 The Ministry does not warrant the accuracy of information supplied to the Researcher (unless otherwise agreed in writing by the Ministry).
PART 5: ADDITIONAL FINANCIAL MATTERS
Indemnity from Researcher
5.1 The Researcher shall indemnify the Ministry against any claim, action, damage, loss or liability, cost (including legal and other professional costs), expense or payment made, incurred or suffered by the Ministry arising out of or in connection with:
5.1.1 any breach by the Researcher of the Contract; or
5.1.2 any other act or omission of the Researcher in connection with the performance of the Contract,
other than those costs, expenses and payments the Ministry has expressly agreed to pay under the Contract. Without limitation such indemnity shall extend to the reasonable litigation costs incurred by the Ministry (including solicitors costs on a solicitor – client basis).
5.2 The liability of the Researcher in respect of the indemnity under clause 5.1 may be limited expressly in the Ministry’s Contract Acceptance Letter.
Costs and expenses
5.3 Each Party shall pay its own legal and other costs and expenses in relation to the negotiation and preparation of the Contract and, in particular, the Researcher shall pay its own costs and expenses in respect of the preparation of the Researcher’s Tender, Proposal or Submission.
PART 6: RELATIONSHIP BETWEEN THE MINISTRY AND THE RESEARCHER
Nature of relationship between the Parties
6.1 The Researcher shall carry out the Research Services independently of the Ministry. Nothing in the Contract creates any relationship of employer and employee, principal and agent, or partnership between the Parties.
Parties to co-operate with one another
6.2 The Parties shall provide reasonable co-operation to one another to ensure the Research Services are properly carried out.
No assignment or sub contracting
6.3 The Researcher shall not assign, novate, otherwise transfer, subcontract, or charge any of its rights or obligations under the Contract without the Ministry’s prior written approval. If the Researcher is a company, any transfer of shares, or any other arrangement that changes the effective control of the Researcher is deemed to be an assignment for the purposes of this clause.
6.4 If the Researcher assigns, novates, transfers or subcontracts any of its obligations under the Contract (with the Ministry’s prior written approval) the Researcher shall be jointly and severally liable to the Ministry with the assignee, transferee or subcontractor for those obligations.
6.5 The Researcher shall, at the Ministry’s request, ensure that all subcontracts for the Research Services contain the subcontractor’s consent to the assignment of the benefit of the subcontract, or novation of the subcontract, to the Ministry.
Benefits not conferred on others
6.6 Nothing in the Contract confers any rights or benefits on any person other than the Ministry and the Researcher.
6.7 In the event of a dispute concerning any matter connected with the Contract, either Party may give to the other written notice (“Notice of Dispute”) that shall adequately identify the matter that is the subject of the dispute.
6.8 The Parties shall use all reasonable endeavours to resolve as promptly as possible any dispute identified in a Notice of Dispute.
6.9 If a dispute has not been settled within 5 Working Days of receipt by a Party of a Notice of Dispute, the Party that gave the Notice of Dispute shall, by notice in writing to the other Party, refer the dispute to mediation or some other form of alternative dispute resolution (“Mediation”) conducted in New Zealand and governed by New Zealand law.
6.10 If the Parties do not agree within 5 Working Days of reference of the dispute to Mediation (or such further period as agreed in writing by them) as to:
6.10.1 the resolution of the dispute;
6.10.2 the dispute resolution procedures to be adopted;
6.10.3 the timetable for all steps in those procedures; and
6.10.4 the selection and compensation of the independent person required for the Mediation,
then the Parties shall mediate the dispute in accordance with the mediation rules of LEADR New Zealand Inc., and the Chair of LEADR (or his or her nominee) shall select the mediator and determine the mediator’s remuneration.
6.11 The Parties shall make all reasonable efforts to resolve the dispute by Mediation within 3 months (or such other period as the Parties may agree to in writing) from the date of receipt by a Party of the relevant Notice of Dispute. If the dispute is not resolved by Mediation within that period, the Parties may then seek any other remedies that are available to them in relation to that dispute.
6.12 The Ministry and the Researcher shall each pay their own costs for resolving any dispute.
PART 7: CONFIDENTIALITY AND INTELLECTUAL PROPERTY
7.1 Subject to clause 7.2, the Ministry and the Researcher agree that:
7.1.1 public statements relating to the Contract shall be joint statements in a form agreed by both the Parties; and
7.1.2 the contents of, and matters relating to, the Contract, the Research Services and the performance of the Contract and the Research Services are to remain confidential.
7.2 Despite the restrictions on public statements under clause 7.1, either Party may make public statements relating to the Contract that contain no more than the following information:
7.2.1 the names of the Parties;
7.2.2 dates relating to the beginning, performance or completion of the Research Services;
7.2.3 [the total value of fees payable or paid by the Ministry to the Researcher for performance of the Research Services; and]
7.2.4 a brief description of the Research Services performed or to be carried out.
7.3 The Researcher shall keep confidential, and shall use all reasonable endeavours to ensure that any subcontractors, agents and suppliers keep confidential:
7.3.1 all information, whether oral or contained in any form of media, that the Researcher obtains or becomes aware of in connection with the Contract and, in particular, the carrying out of the Research Services; and
7.3.2 where the Research Services consist of developing a methodology for carrying out research, the methodology developed by the Researcher; and
7.3.3 the Research Products,
which together form “Confidential Information”.
7.4 The Researcher shall:
7.4.1 subject to clause 7.5, use the Confidential Information only to carry out, or in connection with, the Research Services unless:
(a) the Contract expressly provides otherwise; or
(b) the Ministry gives its prior written consent;
7.4.2 subject to clause 7.5, not disclose to a third party any Confidential Information unless:
(a) required to do so by law, in which case the Researcher shall consult with the Ministry prior to such disclosure;
(b) the information is or becomes available in the public domain without breach by the Researcher of its confidentiality obligations under the Contract;
(c) the Contract provides for that disclosure; or
(d) the Ministry gives its prior written consent to that disclosure;
7.4.3 upon written request by the Ministry, promptly destroy or deliver to the Ministry (as required by the Ministry) all Confidential Information (and all copies of the Confidential Information) after the conclusion of the Research Services; and
7.4.4 enter into, and require that any subcontractors, agents, or suppliers who will come into possession of the Confidential Information enter into, a confidentiality agreement that:
(a) includes clauses to the same effect as clauses 7.3 and 7.4 (with all appropriate changes); and
(b) is approved by the Parties.
7.5 The Researcher may use the Confidential Information for the purpose of publishing an article in a scientific journal or other publication if the Ministry gives prior written consent to that publication [(which consent shall not be unreasonably withheld)].
Intellectual Property and Copyright
7.6 The Intellectual Property in:
7.6.1 the Research Products;
7.6.2 the Research Materials; and
7.6.3 any material provided by the Ministry to the Researcher for the Researcher to carry out the Research Services,
(which together form the “Ministry’s Material”), is the exclusive property of the Ministry (unless the Contract expressly provides otherwise).
7.7 The Ministry’s Material is not to be used or reproduced for any purpose other than to carry out, or in connection with, the Research Services unless:
7.7.1 the Contract expressly provides otherwise; or
7.7.2 the Ministry gives it prior written consent.
7.8 The Researcher shall take all steps necessary to ensure all of its employees, agents or subcontractors have been engaged on the basis that the Intellectual Property in the Ministry’s Material, is the exclusive property of the Ministry and may not be used, copied or reproduced otherwise than in accordance with the Contract.
7.9 All Research Products and Research Materials shall be identified as being subject to the Intellectual Property rights of the Ministry.
7.10 Intellectual Property discovered by the Researcher during the course of, but not related to, the Research Services, or discovered through activities in similar work on behalf of and funded by other clients, or pre-existing Intellectual Property owned and used by the Researcher or acquired by the Researcher from third parties, is excluded from this clause 7.
7.11 To the extent provided by the Copyright Act 1994, where Intellectual Property in the Research Products:
7.11.1 is held by the Researcher, the Researcher assigns to the Ministry all its right, title and interest in that Intellectual Property contemporaneously with that Intellectual Property being created; and
7.11.2 is held by a third party, the Researcher shall ensure the third party assigns to the Ministry all its right, title and interest in that Intellectual Property contemporaneously with that Intellectual Property being created.
Waiver of moral rights
7.12 The Researcher unconditionally and irrevocably waives all moral rights under Part 4 of the Copyright Act 1994 that exist or may exist in the Research Products or Research Materials. Where the Researcher is not the owner of those moral rights, the Researcher shall obtain a waiver or waivers from the owner(s) of the moral rights in a form acceptable to the Ministry immediately upon request by the Ministry.
Protection of the Intellectual Property of others
7.13 The Researcher shall not develop or use in the course of carrying out the Research Services, any work or material which infringes or is likely to infringe the Intellectual Property of any person.
7.14 The Researcher shall indemnify the Ministry against any claim that a third party’s Intellectual Property has been breached by the Researcher carrying out the Research Services, or by the Ministry in claiming Intellectual Property to the Research Material or Research Products.
7.15 The Researcher acknowledges that, if the Research Services specifically include developing a methodology for carrying out research, any Intellectual Property in that methodology developed by the Researcher is the exclusive property of the Ministry, unless the Ministry and the Researcher have agreed otherwise in writing.
7.16 The Ministry acknowledges it shall not have Intellectual Property in any methodology for carrying out research developed by the Researcher if the Research Services do not specifically include developing that methodology.
7.17 The Researcher shall, unless and to the extent the Researcher has complied with clauses 7.4.3:
7.17.1 subject to clause 7.17.3, retain all Research Material for 6 years from its creation;
7.17.2 not destroy Research Material after the expiry of the 6 year period unless the Researcher has given the Ministry reasonable notice in writing of its intention to destroy that Research Material; and
7.17.3 at any time after termination of the Contract, upon written request by the Ministry, promptly deliver to the Ministry all Research Material and Research Products and all copies of that Research Material and Research Products except for Research Material and Research Products destroyed in accordance with clause 7.17.2.
PART 8: UNCONTROLLABLE EVENTS (FORCE MAJEURE)
Suspension of obligations
8.1 Subject to clause 8.3, if the Ministry or the Researcher is not able to perform its obligations under the Contract as the result of an Uncontrollable Event, the effect of which could not have been reasonably foreseen or allowed for, the performance of each Party’s obligations under the Contract shall be suspended and neither Party shall be responsible for any consequential failure or delay in performing its obligations under the Contract.
8.2 “Uncontrollable Event” means an event outside the affected Party’s reasonable control and includes acts of God, strikes, lockouts and labour disputes not involving the Researcher’s personnel, war, riot, fire, earthquake, flood, tsunami, storm or other natural disaster [but not including any event , or any failure to comply with any term of this Contract arising from such event, that could have been avoided by the exercise, by the affected party, of business continuity or other practices in accordance with commercially reasonable practice].
8.3 Nothing in this Part 8 shall suspend the performance of the Ministry’s obligations to pay the Researcher the proportion of the Contract Fee commensurate to the proportion of the Research Services the Researcher has carried out up to the date the Parties’ obligations were suspended and any other amounts owing to the Researcher.
8.4 On a suspension of the Contract under clause 8.1, that Party encountering the Uncontrollable Event shall immediately:
8.4.1 notify the other Party of the reason for the suspension and the effect of it; and
8.4.2 discuss with the other Party the consequences of the suspension and use all reasonable endeavours to:
(a) perform its obligations under the Contract; and
(b) minimise the effect of the suspension.
Resumption of obligations
8.5 If the effects of the Uncontrollable Event persist for a period of 10 Working Days (excluding the first day of the commencement of the Uncontrollable Event) then either Party may terminate the Contract by notice in writing to the other. If the effects of the Uncontrollable Event are such that clauses 9.2 to 9.7 apply and the Uncontrollable Event is eliminated within 10 Working Days then each Party shall resume its obligations under the Contract.
PART 9: COMPLETION OF RESEARCH SERVICES, SUSPENSION AND TERMINATION
Completion of the Research Services
9.1 The Researcher shall complete the Research Services by the relevant Milestone and other date(s) set out in the Contract.
Suspension of the Research Services
9.2 The Ministry may at any time by written notice require the Researcher to suspend carrying out the Research Services, and the Researcher shall immediately on receipt of that notice cease carrying out the Research Services.
9.3 The Researcher shall resume carrying out the suspended Research Services immediately upon receipt of an instruction in writing from the Ministry to resume the suspended Research Services.
9.4 Subject to clause 9.7, any additional cost reasonably incurred by the Researcher in complying with the Ministry’s instruction for suspension or resumption of the Research Services shall be added to the next Instalment payable by the Ministry under clause 4.4.
9.5 Subject to clause 9.7, if the Ministry suspends the Contract in accordance with clause 9.2, the Ministry agrees to pay the Researcher an appropriate portion of the Contract Fee for the proportion of the Research Services (if any) the Researcher has carried out in accordance with the requirements of clause 2.2, up to the date the Research Services were suspended.
9.6 The Researcher shall submit an invoice to the Ministry for any payment claimed under clause 9.5 within 10 Working Days of the date the Research Services were suspended.
9.7 The Researcher shall not be entitled to any payment from the Ministry under clauses 9.4 or 9.5 if the Ministry has suspended the Research Services because of a breach by the Researcher of any Material Clause of the Contract.
Termination for cause
9.8 The Ministry may terminate the Contract immediately without any recourse by the Researcher against the Ministry by written notice if the Researcher:
9.8.1 dies, has an order made for winding up, dissolution, bankruptcy or administration made against the Researcher, or ceases business, becomes insolvent, has a receiver, administrator or similar official appointed in relation to all of its assets or makes an arrangement with its creditors;
9.8.2 breaches any Material Clause of the Contract;
9.8.3 persistently fails to perform its obligations under the Contract;
9.8.4 is guilty of any act or omission which causes or is likely to cause damage to the business or reputation of the Ministry;
9.8.4 advises the Ministry that its criminal record or that of any of its subcontractors or agents has now changed such that in the opinion of the Ministry, the termination of this Contract is justified; or
9.8.5 in accordance with clause 3.12, advises the Ministry that a conflict of interest has arisen or may arise.
9.9 The Ministry or the Researcher may terminate the Contract immediately by written notice in the event the other Party breaches any clause of the Contract and fails to remedy the breach within 20 Working Days after receiving written notice requiring it to do so.
Obligations of the Researcher on termination
9.10 On termination of the Contract the Researcher shall, at the request of the Ministry:
9.10.1 as soon as practicable, but no later than 20 Working Days after the date of termination, destroy or deliver to the Ministry (as requested by the Ministry), all Research Material (whether complete or not) and all copies of that Research Material; and
9.10.2 immediately assign to the Ministry without payment the benefit of any or all sub contracts or supply contracts entered into for the performance of the Research Services that are nominated by the Ministry. For the purpose of effecting such assignments only, the Researcher irrevocably appoints the Ministry to be the attorney of the Researcher with full power and authority to execute any assignment on its behalf and to bind the Researcher accordingly.
Obligations of the Ministry on termination
9.11 If the Ministry terminates the Contract in accordance with clause 9.8.1, the Ministry agrees to pay the Researcher an appropriate portion of the Contract Fee for the proportion of the Research Services (if any) the Researcher has carried out in accordance with the requirements of clause 2.2, up to the date the termination takes effect.
9.12 The Researcher agrees to submit an invoice to the Ministry for any payment claimed under clause 9.11 within 10 Working Days of the date the termination takes effect.
9.13 In the event that the Ministry terminates the Contract in accordance with clauses 9.8.2, 9.8.3 or 9.9, the Ministry shall have no obligation to pay the Researcher for any Research Services that have been completed.
Certain provisions survive termination
9.14 Clauses 3.3, 3.8, 4.7, 4.9, 4.13, 4.14, 5.1, 5.2, 9.11 to 9.15 and Part 7 shall survive termination of the Contract and completion of the Research Services.
Continuation of certain rights and remedies
9.15 Termination of the Contract shall not affect the accrued rights or remedies of either the Ministry or the Researcher.
PART 10: GENERAL PROVISIONS
Amendments in writing
10.1 Unless the Contract expressly provides otherwise, no amendment to the Contract is effective unless it is in writing and signed by the Ministry and the Researcher.
Effective waiver of rights and obligations
10.2 Any delay, failure or forbearance by a Party to exercise (in whole or in part) any right or remedy under the Contract does not operate as a waiver of such right or remedy.
10.3 No waiver of any breach of the Contract is effective unless the waiver is in writing and is signed by the Party against whom that waiver is claimed. No waiver may be deemed to be a waiver of any other or later breach.
Effect of illegal, invalid or void provisions
10.4 If any provision of the Contract is determined by a court to be illegal, void or voidable for any reason it shall be treated as having been severed from the Contract without affecting the enforceability, legality, validity or application of any other clause of the Contract.
Governing law and jurisdiction
10.5 The provisions of the Contract are governed by the laws of New Zealand and, subject to clauses 6.7 to 6.12, the Parties submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of the Contract.
10.6 Every notice to be given under, or in connection with, this Contract shall be given in writing:
10.6.1 by personal delivery, when it is left at the other Party’s address (as determined in accordance with clauses 10.6.5 or 10.5.6);
10.6.2 by mailing by pre-paid registered post, in which case notice will be treated as having been given 2 Working Days after (but exclusive of) the date of mailing;
10.6.3 by facsimile transmission, in which case notice will be treated as having been given at the time specified in the facsimile transmission report of the facsimile from which the transmission was made which evidences full transmission, free of errors, to the facsimile number of the Party given notice; or
10.6.4 by electronic mail, in which case notice is treated as having been received by the other Party on the day of successful transmission as confirmed by the electronic mail system.
to the following addresses:
10.6.5 if the Ministry is giving notice, the Researcher’s address specified in the Tender, Proposal or Submission, or if notice of change of address is given, then to that new address; and
10.6.6 if the Researcher is giving notice, the Ministry’s address specified in the Ministry’s Submission Information and Instructions.
10.7 Despite any other provision contained in this clause, any notice given on a day which is not a Working Day, or if given after 5.00 pm on a Working Day, shall be treated as having been given at 9.00 am on the next Working Day.