Standard Terms and Conditions
For routine calibration jobs we will issue a standard Work Order Agreement. Any non-routine calibrations require an assessment of the instrument and will involve an assessment fee plus additional fees if new set up or technical procedures are required. This will be itemised on the Work Order Agreement.
PART A - Contacts, the work, deliverables, fees
Please note, additional charges may apply for equipment found to be faulty, unfit for calibration or unsuited to our standard procedures.
PART B - General Terms
1.1 In addition to the terms defined in Part A, for the purpose of this agreement:
“Cash” means payment in advance by hard currency, cheque, electronic payment, direct credit, credit card or similar;
“Confidential Information” means all information provided by one party (“Disclosing Party”) to another party (“Receiving Party”) to this agreement, whether oral or written, whether in tangible form or not, whether before or after the date of this agreement and includes, but is not limited to, the terms of this agreement, patent applications, inventions, know-how, data, software, drawings, samples, charts, tables, algorithms reports, instructions, manufacturing processes, marketing plans, business plans, product samples, material samples, manuals, diagrams, pictures, and any information of a third party in the Disclosing Party’s possession but does not include information which:
(a) at the time of disclosure is publicly known or becomes publicly known without breach by the Receiving Party of its obligations under this agreement;
(b) is lawfully received by the Receiving Party from a third party not owing (directly or indirectly) any obligation of confidentiality to the Disclosing Party;
(c) is already known to the Receiving Party at the time of disclosure; or
(d) is independently acquired or developed by the Receiving Party without the benefit or use of the Confidential Information of the Disclosing Party, as established by the records of the Receiving Party.
“Intellectual Property Rights” include, without limitation, all rights in any patent, patent application, copyright, trade mark, design, know-how, trade secret, or Confidential Information, including all such rights or similar rights in any invention, device, material, data, drawing, sample, method, process, text, algorithm, software, get-up, or anything similar thereto whether or not registered or capable of registration.
“Working Day” means any day other than a Saturday, Sunday, public holiday in Wellington, Auckland or Christchurch, New Zealand, or any day between the 25th December and 5 January inclusive in any year.
2. the work
2.1 Callaghan Innovation will (subject to the Customer meeting its obligations):
(a) commence the Work on the Commencement Date; and
(b) exercise reasonable care and skill in carrying out the Work, consistent with standards generally accepted in the scientific and engineering professions in New Zealand.
2.2 Callaghan Innovation gives no warranty that the objectives of the Work can be achieved or that the Work or any Deliverable will be of any benefit to the Customer or any other person.
2.3 Subject to any earlier termination in accordance with the terms of this agreement, the Work (or where the Work comprises separate parts, each part of the Work) will be deemed to have been completed upon delivery of the applicable Deliverables (or where Deliverables are not defined on delivery by Callaghan Innovation, of a report summarising the Work).
2.4 The Customer will provide Callaghan Innovation with such access to facilities and personnel within its control as Callaghan Innovation reasonably requires for the purposes of carrying out the Work and Callaghan Innovation will not be responsible or liable for any delay or failure to perform the Work to the extent that such delay or failure is contributed to by the Customer not providing such access.
3. FEES AND PAYMENT
3.1 Clauses 3.2 to 3.5 apply where a Customer is provided credit by Callaghan Innovation.
3.2 Credit is not available until or unless an Application for New Account/Credit Check (“Application”) has been completed and approved by Callaghan Innovation Finance Department and the Customer is or becomes an account holder. Any changes to the information provided on the Application must be notified to Callaghan Innovation within a reasonable time of the change taking effect.
3.3 Callaghan Innovation shall invoice the Customer in accordance with the Payment Schedule. The Customer shall pay Callaghan Innovation all Fees and Expenses (plus GST, if any) in accordance with the due dates set out in the Payment Schedule.
3.4 Where Part A does not specify a Payment Schedule an invoice shall be issued by Callaghan Innovation upon completion of the Work and the Customer will pay Callaghan Innovation all Fees and Expenses (plus GST, if any) specified on an invoice by the 20th day of the month following the date on the invoice.
3.5 If at any time Callaghan Innovation reasonably deems the credit of the Customer to be unsatisfactory;
(a) it may require the Customer to provide at the Customer’s cost, security for payment in a form acceptable to Callaghan Innovation (registrable by Callaghan Innovation on the Personal Property Securities Register as a security interest) and/or Callaghan Innovation may suspend carrying out Work or providing any Deliverables until such security is provided to Callaghan Innovation’s satisfaction; or
(b) it may suspend carrying out Work or providing any Deliverables until payment of the total Fees and Expenses (plus GST if any) is received in full by Callaghan Innovation in cleared funds,
and Callaghan Innovation may require the Customer to pay all costs incurred as a result of suspension and re-commencement of the Work including legal and debt collection costs.
3.6 Clauses 3.7 and 3.8 apply where a Customer is to make payment to Callaghan Innovation by Cash.
3.7 Unless otherwise agreed, where payment is by Cash and/or the Customer is not an account holder, the Work will not be undertaken unless Callaghan Innovation has received (in cleared funds) full payment of all Fees and Expenses (plus GST if any).
3.8 Callaghan Innovation shall invoice the Customer in accordance with the Payment Schedule. Where Part A does not specify a Payment Schedule the Customer will pay to Callaghan Innovation all Fees and Expenses (plus GST, if any) specified on the invoice by the 20th day of the month following the date on the invoice.
3.9 Without limiting any other rights, Callaghan Innovation may suspend carrying out Work or providing any Deliverables where any payment under this agreement is not made in accordance with the Payment Schedule or on any other due date. Callaghan Innovation may require the Customer to pay all costs incurred as a result of suspension and re-commencement of the Work including legal and debt collection costs.
3.10 Notwithstanding any other provision in this agreement, Callaghan Innovation has the right to insist on payment by letter of credit at its discretion.
3.11 On termination of this agreement all outstanding amounts due to Callaghan Innovation will be payable by the Customer immediately.
3.12 Interest will be payable on overdue amounts at a rate equal to 3 percent above the base lending rate of the National Bank of New Zealand from time to time from the due date until the date payment is received. Such interest will accrue on a daily basis and be payable on demand.
3.13 Title to any goods or services including any Intellectual Property Rights that form part of the Deliverables, will be retained by Callaghan Innovation until all amounts payable by the Customer to Callaghan Innovation under the terms of this agreement have been paid in full in cleared funds. Callaghan Innovation may set-off any amount payable by it to the Customer against any amount payable by the Customer to Callaghan Innovation under the terms of this agreement.
3.14 Risk in any goods provided to the Customer as part of the Work shall pass to the Customer upon the earlier of:
(a) delivery of the goods to the Customer; or
(b) notification to the Customer that the goods are ready for collection.
Any costs of delivery, storage and insurance whilst the goods are in transit or storage shall be met by the Customer.
4. liability of Callaghan Innovation
4.1 In no circumstances will Callaghan Innovation be liable, whether in contract, tort including negligence or otherwise, to the Customer for:
(a) any loss or damage arising out of or in connection with any delay in completion of the Work;
(b) any loss of profits or any consequential, indirect or special loss or damage of any kind whatsoever;
(c) any claim made by the Customer against Callaghan Innovation where notice of the claim is not made within a period of 12 months from the date of completion of the Work or, if the Work is not completed, from the date of termination of this agreement; or
(d) any amount that exceeds the total amount of Fees paid by the Customer to Callaghan Innovation under this agreement.
4.2 The Customer will indemnify Callaghan Innovation, its subsidiaries, officers, employees and subcontractors against any claim, proceeding, loss, cost (including legal costs on a solicitor/own Customer basis), damage or expense (“Loss”) incurred by Callaghan Innovation arising from any breach of this agreement by the Customer or the Customer's use of any Deliverable or any output of the Work, any product or process developed there from or incorporating the same other than where such Loss arises directly from a breach of this agreement by Callaghan Innovation.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 All Intellectual Property Rights existing in a party prior to this agreement (“Existing Intellectual Property Rights”) will remain with that party. Except to the extent necessary to complete the Work or expressly stated otherwise, neither party grants any rights in its Existing Intellectual Property Rights to the other party.
5.2 Unless otherwise specified in Part A and subject to Clause 5.3, all Intellectual Property Rights arising directly from the Work (“Work Intellectual Property Rights”) will, vest in the Customer on the later of completion of the Work and payment in full, provided that the Customer has complied with all of its obligations under this agreement.
5.3 Notwithstanding Clause 5.2, where Callaghan Innovation makes any improvement to its Existing Intellectual Property Rights while undertaking the Work and that improvement:
(a) relates to Callaghan Innovation’s tools of trade, meaning without limitation, any technical information, machine, device, method, process, technique, ingredient, recipe, manufacture, design, specification, composition of matter, formula, algorithm, pattern or program that Callaghan Innovation uses in the ordinary course of its business; and
(b) was incidental to the purpose of the Work;
Callaghan Innovation will retain ownership of any Intellectual Property Rights in that improvement provided that Callaghan Innovation grants the Customer a non-exclusive royalty free license to use such Intellectual Property Rights to the extent necessary to make use of the Customer’s Work Intellectual Property Rights.
6. confidential information
6.1 The Receiving Party shall protect the Confidential Information and keep it secure, and shall not at any time (except with the prior written consent of the Disclosing Party):
(a) directly or indirectly disclose or distribute the Confidential Information to any person other than a representative, employee, subcontractor, agent or professional advisor of the Receiving Party;
(b) directly or indirectly disclose or distribute the Confidential Information to a representative, employee, subcontractor, agent or professional advisor of the Receiving Party except where such disclosure is necessary for the purpose of this agreement and is in accordance with Clause 6.2; or
(c) use or copy the Confidential Information except for the purpose of this agreement.
6.2 Where the Receiving Party discloses Confidential Information to a representative, employee, subcontractor, agent or professional advisor under Clause 6.1(b) the Receiving Party shall ensure that such person is aware of the confidential nature of that Confidential Information and is bound by suitable obligations of confidentiality to ensure that that person protects and keeps secure that Confidential Information and does not use the Confidential Information for any reason other than the purpose of this agreement.
6.3 The Receiving Party shall, on demand by the Disclosing Party, or where the purpose of this agreement has been served, promptly at the option of the Disclosing Party, return to the Disclosing Party all Confidential Information of the Disclosing Party (including copies or reproductions of the same) which is reasonably capable of being returned or destroy all Confidential Information of the Disclosing Party (including copies or reproductions of the same) which is in the possession or control of the Receiving Party.
6.4 This agreement is not intended to restrict the use or disclosure of Confidential Information by the Receiving Party to the extent that it is required to be disclosed by law or by a government agency or government authority provided that the Receiving Party has taken such steps as are available under law (but not the institution of legal action) to protect such Confidential Information and notifies the Disclosing Party of its obligation to make such disclosure prior to the time such disclosure is made.
6.5 The provisions of this Clause 6 are subject to the provisions of Clause 5.
7. PUBLICATION OF RESULTS AND USE OF THE Callaghan Innovation NAME
7.1 Where the Customer proposes to publish any test results or other information relating to the Work in any academic publication, the Customer must make suitable reference to Callaghan Innovation and/or its employees (if any) and seek approval from Callaghan Innovation for that reference, such approval not to be unreasonably withheld.
7.2 Except with the prior written approval of Callaghan Innovation, the Customer will not use the name "Industrial Research Limited" or any other similar name or make any other reference to Callaghan Innovation in conjunction with any proposed manufacture or marketing of goods or services.
8.1 Without prejudice to any other right, a party ("Terminating Party") may terminate this agreement forthwith by written notice to the other party ("Defaulting Party") where:
(a) the Defaulting Party breaches this agreement and such breach is capable of remedy, fails to remedy such breach to within 15 Working Days of being provided notice thereof;
(b) the commencement of a winding up of the Defaulting Party (otherwise than for the purposes of a solvent reconstruction of the Defaulting Party) or the appointment of a receiver, statutory manager or other similar functionary over any of the assets or undertakings of the Defaulting Party.
8.2 The termination of this agreement will not relieve a party of due performance of an obligation imposed on that party under this agreement at any time prior to termination.
8.3 The Clauses pertaining to fees and payment, liability, confidential information, intellectual property, publication, disputes and jurisdiction survive termination of this agreement.
9. Force majeure
9.1 Neither party shall be liable to the other if the performance of its obligations under this agreement (other than an obligation to pay money) is prevented or hindered due to any circumstances outside of its reasonable control provided that it will have used all reasonable endeavours to perform its obligations notwithstanding such situation or event.
10. Dispute resolution
10.1 If any dispute arises as to the terms of this agreement, then any party may give notice to the other party of that dispute. The parties will endeavour to resolve it quickly and fairly in good faith.
10.2 If the dispute or difference cannot be settled by good faith negotiation between the parties within five Working Days of the dispute or difference arising, such dispute or difference may be referred by either party to the mediation of a single mediator agreed to by both parties, or failing that, appointed by the President for the time being of the New Zealand Law Society or his/her nominee.
10.3 If the dispute or difference cannot be settled within 15 Working Days of the dispute or difference being referred to mediation pursuant to Clause 10.2, either party may commence court proceedings and shall be entitled to exercise all rights and remedies available to it at law.
10.4 Nothing in this Clause 10 shall prevent either party from commencing court proceedings for the purposes of seeking urgent interlocutory relief.
11.1 NON EXCLUSIVE: Nothing in this agreement will prevent Callaghan Innovation from undertaking activities in fields the same as or similar to the Work, whether on its own account or on behalf of any third party.
11.2 ASSIGNMENT: Neither party will assign or otherwise transfer its rights or obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld). Notwithstanding the above, Callaghan Innovation may subcontract any part of the Work it thinks fit without consent.
11.3 WAIVER: A failure by a party to enforce a provision of this agreement will not constitute a waiver of any right to future enforcement of that or any other provision.
11.4 NOTICES: Any notice required or permitted to be given to a party under this agreement will be delivered or sent by registered post addressed to the registered office of the other party, with a supplemental copy to be sent by facsimile transmission or electronic mail. Any notice sent by registered post within New Zealand will be deemed to have been received on the 3rd Working Day following posting by registered post and any notice sent by registered post anywhere else in the world will be deemed to have been received on the 10th day that is not a statutory holiday in that county following posting by registered post.
11.5 BINDING NATURE: This agreement will be binding upon the successors and permitted assigns of the parties.
11.6 SEVERABILITY: In the event that any term or provision of this agreement is unlawful, such provision will be severed to the extent of such violation and the remaining provisions enforceable, but only if the severance does not materially affect the purpose of, or frustrate, this agreement.
11.7 ENTIRE AGREEMENT: This agreement records the entire agreement, and prevails over any earlier agreement, concerning its subject. The parties agree that in entering this agreement, they have not relied on any representation (including pre-contractual representations) other than those which are set out in this agreement.
11.8 APPLICABLE LAW: This agreement will be governed by, and construed in accordance with, the laws of New Zealand and each party submits to the non-exclusive jurisdiction of New Zealand.
11.9 DATE OF AGREEMENT: The date of this agreement shall be the date that the last party signed.
11.10 COUNTERPARTS: This agreement may be signed in counterparts, including by facsimile or email, all of which, when taken together, will constitute one and the same document.
11.11 VARIATIONS: No amendment to Part B of this agreement is binding unless it is in writing and signed by an authorised representative of both parties. The parties may agree amendments to Part A of this agreement by exchange of emails provided that there is clear written evidence of agreement.