Master Services Agreement

BACKGROUND
The Client requires the services, as described in this Agreement (hereinafter "the Services") to be provided.
The Client wishes to hire an independent contractor to provide the Services to the Client.
The Service Provider has the necessary skills, qualifications, and experience to provide the Services to the Client. The Service Provider agrees to provide the Services to the Client on the terms and conditions set out in this Agreement.
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OPERATIVE PROVISIONS
In consideration of the matters described above, and of the mutual benefits and obligations described in this Agreement, the receipt of which and the sufficiency of which are hereby acknowledged, the Service Provider and the Client hereby agree as follows:

1. DEFINITIONS
"Agreement" means this Service Agreement.
"Agreement Date" means the sign date identified in the SOW.
"Claims" means any claims, losses, proceedings, damages, punitive damages, penalties, demands, fines, and liabilities whether criminal, civil, in tort, in contract, or otherwise.
"Client" means Client Limited."Confidential Information" has the meaning described in the
"Confidential Information" clause of this Agreement.
"Fees" means fees paid by the Client to the Service Provider in accordance with this Agreement.
"GST" means Goods and Services Tax imposed on a supply of goods or services in New Zealand, pursuant to the GST Law.
"GST Law" is governed by the Goods and Services Tax Act (1985).
"Intellectual Property" includes but is not limited to processes, business systems, business know-how, trade secrets, moral rights, goodwill, registered designs, copyrights, patents, trademarks, trade dress, industrial design, trade names, or other similar rights, or rights to apply for any of these rights.
"Losses" means any losses including but not limited to financial losses, expenses, damages, costs including legal fees, legal costs, and other expenses of any nature whatsoever.
"Other Projects” means any work which falls outside of the remit outlined in the Master Statement of Work, where the Client has contracted the Service Provider to complete additional work.
“Master Statement of Work” means the document governing the work / type of work to be completed under retainer for the company.
"Party" means either the Client or the Service Provider."Parties" means the Client and the Service Provider collectively.
"Receiving Party" in relation to a piece of Confidential Information means the Party which receives the Confidential Information from the other Party (whether directly or indirectly).
"Service Provider" means TenX Limited.
"Services" means the services to be provided by the Service Provider to the client, the specific description of which is as described in this Agreement.
“Statement of Work” means documents outlining the scope of requirements to be completed for additional work requested by the client separate to any Master Statements of Work.
"Supplying Party" in relation to a piece of Confidential Information means the Party which supplies the Confidential Information to the other Party (whether directly or indirectly).
"Termination Date" means the earlier of the date that this Agreement is terminated by the Client or the Service Provider, or the date of expiry of this Agreement.

2. INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation shall apply:a. Words referring to one gender include every other gender.
b. Words referring to a singular number include the plural, and words referring to a plural include the singular.
c. Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organizations, and other legal entities, and vice versa.
d. Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.
e. Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it.
f. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.

3. SERVICES
a. In consideration for the Client paying the Fees, and subject to the provisions of this Agreement, the Service Provider hereby agrees to provide the Client with the services as outlined in the SOW.

4. LOCATION OF SERVICES
The Services may be performed at a location/s as agreed between the Parties.

5. TERM
a. The term of this Agreement ("the Term") will commence on the Agreement Date and will continue until the Services have been completed, or such other time as provided in this Agreement.
b. The Term may be extended by written agreement of the Parties.

6. PERFORMANCE OF SERVICES
a. The Services may be performed by the Service Provider personally, or by any employees, agents, or subcontractors as chosen by the Service Provider in the Service Provider's sole discretion.
b. The Service Provider is responsible for any work undertaken by the Service Provider's subcontractors, employees, or agents.
c. Any Services undertaken by the Service Provider's subcontractors, employees, or agents must be undertaken to, at a minimum, the same standards as set out in this Agreement.
d. The Service Provider is solely responsible for any payments to the Service Provider's employees, agents, subcontractors, or affiliates in relation to the provision of the Services under this Agreement, including any payments due for salary, wages, annual leave, sick leave, long service leave, superannuation, and any other amounts to which the Service Provider's employees, agents, subcontractors, or affiliates may be entitled in relation to the provision of the Services under this Agreement.
e. The Service Provider is solely responsible for ensuring compliance with any legislation which applies to the Service Provider's employees, agents, subcontractors, or affiliates.

7. INSURANCE
a. The Service Provider must obtain all relevant insurance policies ("the Insurance Policies"), including but not limited to:
I. all those insurance policies required by law; and
II. Public and Product liability insurance for a minimum of $1M
b. Upon the request of the Client, the Service Provider must provide to the Client a copy of the Insurance Policies.
c. If for any such reason, the Service Provider’s insurance policy does not cover a particular industry, region, or service type, the Service Provider shall not be liable for any costs, losses, damages, or other penalties incurred in relation to any work performed or services provided, to the maximum extent allowed by law.

8. NATURE OF RELATIONSHIP
a. Nothing in this Agreement constitutes an employment relationship between the Client and the Service Provider or between the Client and the Service Provider's workers (such as the employees, agents, or subcontractors of the Service Provider). No relationship of employer and employee is created by this Agreement.
b. Nothing in this Agreement creates a partnership, joint venture, fiduciary relationship, agency, or other relationship between the Client and the Service Provider except for the contractual relationship which is provided in this Agreement.
c. The Parties hereby acknowledge and confirm that it is the express intention of all Parties that the Service Provider is acting in relation to the Client as a contractor and not as an employee, partner, joint venture partner, agent, or otherwise.

9. CURRENCY
Unless otherwise specifically provided in this Agreement, all amounts referred to in this Agreement are in New Zealand dollars.

10. FEES
‍a. In consideration for the Service Provider providing the Services in accordance with this Agreement, the Client agrees to pay fees to the Service Provider ("Fees") as outlined in any statement of work provided and agreed to by both parties.
b. the Parties acknowledge that the Fees are exclusive of any Goods and Services Tax ("GST") that may be charged by the Service Provider and therefore that the Service Provider will be entitled to add GST to the Fees.

‍11. MATERIALS, COSTS AND DISBURSEMENTS
‍In addition to the Fees, the Service Provider may charge the Client for materials, costs and/or disbursements incurred in performing the services.

‍12. INVOICING
‍a. The Service Provider must provide the Client with a tax invoice in accordance with the GST Law in relation to the Fees.
b. The Service Provider will be entitled to invoice the Client monthly.
c. Once the Service Provider provides a valid invoice in relation to the Fees ("the Invoice"), the Client must make payment as per the payment terms outlined in the SOW.

‍13. LATE PAYMENT OF INVOICE
‍a. If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may charge interest on any amounts outstanding, at the rate of: 7% per annum, accruing daily.
b. If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may refrain from providing any further Services, or any other work for the Client or any other services to the Client (even if that work or those services are dealt with under a separate service agreement) until the Invoice has been paid in full.
c. If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may require the Client to pay in advance for any future Services or any part of the Services which have not been performed.
d. If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may impose the following penalties:Removal of access to any tools or systems previously provided to the Client by the Service Provider and;Withdrawal of rights to utilise any Intellectual Property developed as part of this Agreement.

‍14. CLIENT OBLIGATIONS
‍The Client:
a. must, at the Client's own cost, take all reasonable steps to cooperate in good faith with the Service Provider during the period while the Service Provider is providing the Services to the Client, including by providing to the Service Provider any information or documentation that the Service Provider reasonably requires in order to provide the Services, and making available to the Service Provider any facilities, resources or personnel that the Service Provider reasonably requires in order to provide the Services.
b. must ensure that the Client's employees, agents and other contractors take all reasonable steps to cooperate in good faith with the Service Provider during the period while the Service Provider is providing the Services to the Client, including by making available any information, documentation, facilities, resources or personnel as reasonably required by the Service Provider, in accordance with this clause.
c. will, in the event that the Client does not provide the information, documentation, facilities, resources or personnel or does not take any other steps to cooperate with the Service Provider as the Service Provider reasonably requires, within the time period that the Service Provider reasonably requires, be liable for any additional costs and expenses which are reasonably incurred by the Service Provider.

‍15. RETURN OF PROPERTY
‍a. Upon the termination, expiration or completion of this Agreement, each Party will promptly return to the other Party ("the Second Party") respectively any property, documentation, records or confidential information which is the property of the Second Party.
b. In the event that the Client terminates this Agreement prior to completion of the Services:
I. the Service Provider will be entitled to attend the location or locations where the Services were undertaken strictly in order to recover any materials and/or equipment which are the property of the Service Provider; or
II. if agreed between the Parties, the Client may retain the Service Provider's materials and/or equipment but must compensate the Service Provider for the said materials and/or equipment in an amount as agreed between the Parties.
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‍16. CONFIDENTIAL INFORMATION
‍a. Each Party ("the Receiving Party") shall keep the confidential information of the other Party ("the Supplying Party") confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the purpose of performing the Receiving Party's obligations under this Agreement. The Receiving Party shall inform its employees, officers, agents or subcontractors of the Receiving Party's obligations under the provisions of this clause, and must ensure that the Receiving Party's officers, employees and agents meet those obligations.
b. For the purpose of this Agreement, "Confidential Information" means all information relating to the Supplying Party which might fairly be considered of a confidential nature and includes, but is not limited to:
I. information of whatever nature, without limitation, which is obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observations during visits, or by demonstrations;
II. information of whatever nature relating to the business activities, practices and finances of the Supplying Party;
III. any evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, innovations, creative plans, concepts and any other plans or ideas developed by the Supplying Party or on its behalf or used by the Supplying Party, whether relating specifically to the Services or otherwise;
IV. any information derived from any other information which falls within this definition of Confidential Information;
V. any copy of any Confidential Information; and
VI. the fact that discussions are taking place between the Parties but does not include information which:
I. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
II. is, or becomes, publicly available, through no fault of the Receiving Party;
III. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
IV. is provided to the Receiving Party by the Supplying Party and is marked "Non Confidential"; or
V. is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Supplying Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.
c. If there is any doubt as to whether any particular information constitutes Confidential Information, written confirmation is to be obtained from the Supplying Party.
d. This clause will survive the termination, expiration or completion of this Agreement.

17. INTELLECTUAL PROPERTY
In connection with the provision of the Services, the Service Provider may generate, create, write or produce intellectual property ("Created IP"), including but not limited to plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property as required in order to provide the Services to the Client.
Unless otherwise agreed between the Parties, any intellectual property rights in any Created IP generated by the Service Provider in connection with the provision of the Services to the Client shall belong to the Service Provider.
Unless otherwise agreed between the Parties, the Service Provider shall provide to the Client a non-transferable, irrevocable, non-exclusive licence (with a right of sub-licence) to use any Created IP generated by the Service Provider in connection with the provision of the Services to the Client. Unless agreed otherwise in writing by both parties, the licence shall only apply in the following geographical region: Globally.
Unless otherwise agreed between the Parties, any intellectual property rights in any intellectual property provided by the Client to the Service Provider in order to assist in the provision of the Services, shall belong to the Client.

18. QUALITY OF SERVICES
The Service Provider must perform the Services using reasonable care and skill for a Service Provider in its field.
The Service Provider must ensure that any end products or materials given by the Service Provider to the Client under the terms and conditions of this Agreement will not infringe on or violate the intellectual property rights or any other right of any third party.
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19. LIMITATION OF LIABILITY
To the maximum extent permitted by law, the Service Provider expressly disclaims all conditions and warranties of any kind.
The Client hereby agrees that the Client is solely responsible for determining whether the Services are fit for the Client's purpose.
Except in cases of death or personal injury caused by a Party's negligence, that Party's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the completion of obligations under this Agreement, liability shall be limited to Fees paid by the Client to the Service Provider.
To the extent it is lawful, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits or business.

20. INDEMNITY
Except for any payment in settlement from any applicable insurance policy or policies, and to the extent permitted by law, each Party, (which for the purposes of this clause shall be referred to as the "Indemnifying Party" as the context requires) hereby respectively indemnifies, keeps indemnified, and holds harmless the other Party, as well as any of the other Party's employees, agents, officers, representatives, affiliates, and permitted successors and assigns, against any and all demands, claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal costs, and any other costs whatsoever which may arise out of any act or omission of the Indemnifying Party in connection with this Agreement; or any act or omission of any of the Indemnifying Party's employees, agents, officers, representatives, affiliates, or permitted successors and assigns in connection with this Agreement; or the Services or anything provided under this Agreement; or the relationship between the Service Provider and the Client.
The Indemnifying Party shall not be liable under the indemnity given under this clause where a court of competent jurisdiction, giving a final judgment, holds that any loss, damage or liability is the result of the gross negligence, wilful misconduct or bad faith of the other Party or of any of the other Party's employees, agents, officers, representatives, affiliates, or permitted successors or assigns.
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21. WORKPLACE HEALTH AND SAFETY
The Service Provider will make all reasonable efforts to comply with the Client’s relevant WHS Policies or any other standards and regulations in relation to workplace health, safety, welfare and wellbeing as required by the Client or by law. Should expenses be incurred by the Service Provider beyond what would be considered reasonable, the Client will be liable for any such expense in accordance with clause 11.
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22. WARRANTIES REGARDING COMPETITION
Each Party hereby respectively warrants that this Agreement does not relate to a contract, arrangement, or understanding, or a concerted practice for the purpose, or with the likely effect, of substantially lessening competition; that this Agreement does not relate to some kind of exclusive dealing between the parties, for the purpose, or with the effect or likely effect, of substantially lessening competition; that this Agreement does not relate to some kind of arrangement involving "price fixing", whereby competitors have agreed on pricing rather than competing against each other; that this Agreement does not relate to some kind of arrangement involving "output restrictions", whereby competitors have agreed to prevent, restrict, or limit the volume or type of particular goods or services available; that this Agreement does not relate to some kind of arrangement involving "market sharing", whereby competitors have agreed to divide or allocate customers, suppliers, or territories among themselves rather than allowing competitive market forces to work; and that this Agreement does not relate to some kind of arrangement involving "bid rigging" or "collusive tendering", whereby competitors have agreed they will not compete genuinely with each other for tenders, allowing one of the competitors to 'win' the tender.
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23. WARRANTIES REGARDING LEGAL ADVICE
Each Party, (which for the purposes of this clause shall be referred to as the "Warranting Party" as the context requires) hereby respectively warrants that the Warranting Party fully understands the terms of this Agreement; that the Warranting Party has had the opportunity to obtain independent legal advice in relation to the matters addressed by this Agreement and the Warranting Party has either taken such independent legal advice or elected not to take such independent legal advice; that the Warranting Party has not been induced to enter this Agreement by any representation(s) made by the other Party or by any officer, employee, director, agent, contractor, assignee, successor or other representative of the other Party, except as provided in this Agreement.
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24. COMPLIANCE WITH LAWS
The Service Provider must, at the Service Provider's own cost, comply with all laws which relate to or affect the Services, the Agreement or the Service Provider, including but not limited to regulations, legislation, delegated legislation, ordinances, rules, codes and any other requirements of any National or Local authorities, bodies or government departments ("the Laws").
The Service Provider hereby indemnifies, keeps indemnified and holds harmless the Client against any actions, costs, charges, claims or demands in relation to a breach of the Laws.

25. ENTIRE AGREEMENT
‍a. The Parties agree that in relation to the subject matter of this Agreement, this Agreement represents the entire agreement between the Parties. The Parties confirm that no warranties, representations, conditions or collateral agreements affect this Agreement or the subject matter of this Agreement except as expressly provided in this Agreement.
b. The Parties each respectively agree that in entering into this Agreement, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in this Agreement.
c. The Parties agree that any warranties, conditions or other terms implied by law are expressly excluded from this Agreement to the maximum extent permitted by law.

26. NOTICES
‍a. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Client if delivered to the client’s registered physical address.
b. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Service Provider if delivered to the following address: Apartment 611,145 Nelson Street, Auckland Central, Auckland, 1010.
c. Either Party ("the Nominating Party") may nominate another address ("the New Address") by notifying the other Party in writing of the New Address. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address.

27. WRITTEN COMMUNICATION
‍a. In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:
Such notice is properly given if given to the other Party:
By email to an email address that the other Party has nominated, acknowledged or used in connection with the Services or this Agreement.
By facsimile to a facsimile address which the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
By post to a postal address the other party has nominated, acknowledged or used in connection with the Services or this Agreement.

Such notice is taken to be received:
If sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.
If sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine.
If sent by prepaid post within New Zealand, five (5) days after the date of posting.
If sent by prepaid post to or from an address outside New Zealand, twenty one (21) days after the date of posting.

28. TERMINATION
‍a. This Agreement may be terminated by the Service Provider if the Client fails to pay any requisite Fees within thirty-one (31) days after the date they are due. The Service Provider may terminate the Agreement immediately, with no notice period, in writing.
b. Aside from termination by the Service Provider in response to the Client's failure to pay any Fees, as set out in the preceding sub-clause hereof, this Agreement may be terminated by either Party, upon notice in writing:
I. if the other Party commits a material breach of any term of this Agreement that is not capable of being remedied within thirty-one (31) days or that should have been remedied within thirty-one (31) days after a written request and was not;
II. if the other Party becomes unable to perform its duties under this Agreement, including a duty to pay or a duty to perform;
III. if the other Party or its employees or agents engage in any conduct prejudicial to the business of the other, or in the event that either Party considers that a conflict or potential conflict of interest has arisen between the Parties.
c. If this Agreement is terminated before the expiration of its natural term, the Client hereby agrees to pay for all Services rendered up to the date of the termination, and for any and all expenditure due for payment after the date of termination for commitments reasonably made and incurred by the Service Provider related to the rendering of Services prior to the date of termination.
d. Any termination of the Agreement under this clause shall not affect the accrued rights and liabilities of either Party under this Agreement or at law and shall be without prejudice to any rights or remedies that either Party may be entitled to.
e. Any part of this Agreement which is meant to continue after termination or which is meant to come into force at or after termination shall not be affected by this clause.

‍29. ASSIGNMENT
‍Neither Party will, whether voluntarily or by operation of law, assign, subcontract, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party.

‍30. WAIVER
‍a. The waiver by either Party of any right or remedy in relation to a breach, default, delay or omission by the other Party of any provision or provisions of this Agreement will not be construed as a waiver of any subsequent breach of the same or other provisions of this Agreement.
b. The failure or delay by either Party in exercising any right or remedy under this Agreement will not constitute a waiver of that right or remedy, nor will it prevent or impair that Party from subsequently exercising that right or remedy.
c. Any rights or remedies provided in this Agreement are cumulative and are in addition to any rights or remedies provided by law.

‍31. FORCE MAJEURE
‍a. In the event that circumstances arise which:I. are outside of the reasonable control of a Party; andII. materially affect that Party's performance of its obligations under this Agreement; andIII. could not have been reasonably foreseen or avoided;(hereinafter "the Circumstances"), then that Party will not be deemed to be in breach of this Agreement and will not have any liability under this Agreement for any delays or failures in performance of that Party's respective obligations under this Agreement.
b. In the event that such a delay or failure occurs, the Party affected by the Circumstances must immediately notify the other Party in writing of when the Circumstances cause a delay or failure in performance, and when the Circumstances no longer cause a delay or failure in performance.
c. Either Party may terminate this Agreement, if the Circumstances continue for a continuous period of six months or more, by providing written notice to the other Party.

‍32. APPLICABLE LAW
‍This Agreement is subject to the laws of New Zealand and each Party submits to the jurisdiction of the courts of New Zealand.

‍33. SEVERABILITY
‍If any clause or sub-clause of this Agreement is held to be invalid or unenforceable, it is to be read down or severed such that the remaining clauses and sub-clauses will be enforced to the maximum extent possible. In such circumstances the remaining provisions of this Agreement shall continue in full force and effect.

34. SURVIVAL OF OBLIGATIONS
‍At the termination, expiration or completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including but not limited to any provisions which explicitly state that they will survive termination or expiration.