Customer Terms and Conditions for Freight Management Services

New Zealand

1. INTERPRETATION

1.1 In this agreement, unless the context otherwise requires:

Affiliates means any person or entity which NGX or Customer or their respective stockholders or individual partners, directly or indirectly, through one or more intermediaries, controls, is in common control with, or is controlled by.

Applicable Laws

means any act, regulation or code applicable to the carrying out of the Services or undertaking any obligation of the Agreement including acts of parliament, legislation, ordinances, regulations, by-laws, other subordinate legislation and codes relating to occupational health and safety, driving hours, road safety and regulation, vehicle mass, vehicle maintenance and vehicle emissions.

Cargo Transport Order means the notice provided to NGX by Customer alerting NGX that the Services are required in respect of Goods.

Commencement Date means the commencement date of services as specified in Schedule 1.

Computer Management Systems means the computer hardware and software made available to Customer by NGX to use during the term of this agreement in relation to the Services. This may include:

(a) a recognised transportation management system;

(b) a recognised optimisation sub-system;

(c) a financial and billing system;

(d) a reporting system;

(e) appropriate systems interfaces with relevant Customer systems and any other systems as reasonably directed by Customer;

(f) health and safety management system; and

(g) chain of responsibility management system.

Confidential Information means, in respect of a party or its Affiliates, all trade secrets and know-how, financial information and other commercially valuable information and other non-public information of whatever description and in whatever form relating to the party, including but not limited to all information relating to the Goods, and which by its nature such information should be known to be confidential.

Consignee means the legal person to whom Goods are to be delivered but does not include any Service Provider.

Consignment means a specified quantity of specified Goods (as detailed in a Dispatch Note) accompanied by instructions relating to the delivery from the relevant Dispatch Point to the relevant Delivery Point as provided by the consignor of the delivery (being the person who requires the delivery to be made and who pays for the performance of the delivery).

CPI Means the Consumer Price Index or other relevant price index used for calculating periodic price increases.

Delivery Point means any place or address specified by Customer to which any Goods are to be delivered as agreed between the parties from time to time.

Dispatch Point means any place or address specified by Customer from which Goods are to be collected for the purposes of delivery to the Delivery Point as agreed between the parties from time to time.

Dispatch Note means a document detailing the description, unit measure and quantity of Goods in a Consignment.

FAF Means Fuel Adjustment Factor, as added to the Freight Service Fees.

Force Majeure Event has the meaning given to such term in clause 19.1.

Freight Service Fees Means the amount payable by Customer to NGX for the Services as set out in Schedule 1, exclusive of GST and FAF, or as otherwise agreed between the parties.

Goods means the goods to be transported under the Services and as specified in Schedule 1 or as otherwise agreed between the parties.

Guaranteed Volumes means the minimum volume of Goods as defined in Schedule 1 that the Customer shall provide to NGX to perform the Services in accordance with clause 10.4.

Intellectual Property means any intellectual property including, without limitation, all rights to, and any interests in, any patent, design, trade mark, copyright, know-how, trade secret and any other proprietary right or form of intellectual property (whether protectable by registration or not), Customer list, agency agreement, purchase agreement, specification, formula, drawing, programme, design, system, process, logo, mark, or style.

Key Performance Indicators or KPIs means the standards relating to the performance of the Services or any part of the Services, specified in Schedule 2.

KPI Period means the period during which the relevant Key Performance Indicator is measured as defined in Schedule 1.

Loss means all loss, liabilities, damages, costs, expenses, debts, obligations, claims, demands, suits, actions and causes of actions, including lawyers' fees, other professionals' and experts' fees, and court or dispute resolution costs whether actual or contingent, present or future, quantified or unquantified.

Management Meetings means a regular review meeting between Customer and NGX.

National Pallet Policy Means the policy set out at Appendix 2.

Payment Terms Means the payment terms under which Customer shall pay NGX for the Services, as set out in Schedule 1.

Period of Control means, in respect of any Goods:

(a) if the Goods are loaded onto a Vehicle by an employee or agent of Customer, the period of time commencing from the time at which the loading of such Goods onto the Vehicle is completed; or

(b) if the Goods are loaded onto a Vehicle by a Service Provider, the period of time commencing from the time at which the loading of the Goods commences,

and ending at the time at which the intended Consignee accepts delivery of the Goods by signing a Proof of Delivery in respect of the Goods.

Proof of Delivery means the Sub-Contractor’s delivery record, consignment note, Dispatch Note or equivalent written or electronic document setting out the details of the delivery to a Customer of Goods as part of an Order and which is signed or otherwise records the proof of delivery of the Goods.

Schedules means the schedules to this agreement as varied from time to time in accordance with this agreement.

Service Area means any Dispatch Point or Delivery Point.

Service Provider means NGX, its agents, domestic freight carriers, international freight service providers and Sub-Contractors (and any sub-contractors and agents thereof, including any owner-driver who is retained by a Sub-Contractor to provide the Services), and includes each of their respective employees.

Services means the Freight Management Services and the Cargo Transport and Distribution Services as further specified in Appendix 1 (Services) related to Customer’s national distribution within New Zealand (including any individual service which forms a part of the Freight Management Services or the Transport and Distribution Services) and will also include any other services which are added to the scope of this agreement following the Commencement Date in accordance with this agreement, together with other support services agreed between the parties.

Sub-Contractor means trucking companies, coastal shipping companies, international shipping companies and other parties performing the Services on behalf of NGX in accordance with this agreement.

Vehicle means any vehicle and or equipment used by any Service Provider in the provision of the Services.

1.2 In this agreement, unless the context otherwise requires:

(a) words importing one gender include the other gender;

(b) the singular includes the plural and vice versa;

(c) references to a week, month or a year are references to a calendar week, calendar month or calendar year, as the case may be.

1.3 In this agreement:

(a) a reference to Customer or NGX is a reference also to their respective successors and permitted assigns;

(b) a reference to a “person” includes an individual, firm, company, corporation or unincorporated body of persons, or any local or central government or any agency thereof (in each case, whether or not having separate legal personality);

(c) headings are for convenience only and shall not affect interpretation;

(d) references to sections, clauses and schedules are references to sections, clauses and schedules of this agreement unless specifically stated otherwise;

(e) references to any “laws” shall be to New Zealand laws, unless expressly stated otherwise, and shall include any Act of Parliament, statute, regulation, order or any directive of any central or local government or any board, commission, department, division, court, agency or political subdivision thereof;

(f) references to any Act or provisions of any Act include any modification, re-enactment or extension thereof for the time being in force and also any corresponding provision and repeal enactments and includes all subordinate legislation made or purported to be made or administered under an Act of Parliament;

(g) all amounts are in New Zealand dollars unless expressly stated otherwise; and

(h) any obligation of two or more parties shall bind them jointly and severally, unless otherwise specified.

2. THE SERVICES

2.1 NGX shall provide for the benefit of the Customer, the Services, from the Commencement Date until the expiry of the agreement in accordance with this agreement.

2.2 NGX will work collaboratively with Customer in order to achieve optimal delivery of the Services in a safe and compliant manner in accordance with the terms of this agreement. This clause does not override (and is subject to) the specific terms of this agreement.

2.3 NGX shall provide a Proof of Delivery to the Customer upon request of Customer.

2.4 NGX shall provide and perform the Services with due care, skill and diligence and to a level consistent with New Zealand standards of best practice for persons engaged in the performance of such services and in accordance with all other requirements of this agreement, using appropriately qualified employees and Sub-Contractors and using systems and hardware that are maintained in good working order and operated safely and efficiently.

3. KEY PERFORMANCE INDICATORS & SERVICE LEVELS

3.1 NGX shall perform the Services in accordance with the Key Performance Indicators (whilst ensuring that the Services are provided in accordance with all Applicable Laws). The Key Performance Indicators shall be the standards against which the performance of the Services by NGX shall be measured. NGX shall:

(a) perform the Services in accordance with the Key Performance Indicators;

(b) ensure that its Sub-Contractors perform the Services in accordance with the Key Performance Indicators;

(c) measure and present a regular report on it and its Sub-Contractors performance against the Key Performance Indicators;

(d) notify Customer as soon as reasonably practicable of each failure by NGX or its Subcontractors to achieve the level of service or performance required by any Key Performance Indicator and rectify such failure as soon as possible.

3.2 NGX acknowledges that the Services and Key Performance Indicators specified in the Schedules are those which Customer considers will meet its current freight management requirements and that changes to the Services and Key Performance Indicators may be required from time to time throughout the term of the agreement to ensure that those requirements continue to be met

3.3 Key Performance Indicators shall be measured and reported by NGX to Customer in accordance with the KPI Period.

3.4 At any time during the term of the agreement and upon reasonable notice, Customer may request to vary any of the Services or Key Performance Indicators by adding new Services or removing or altering any existing Services or by adding to or amending the Key Performance Indicators due to any of the following:

(a) the sale of any business by Customer;

(b) the acquisition of any business by the Customer;

(c) the closure or relocation of any manufacturing, storage or distribution facility or the introduction of any new manufacturing, storage or distribution facility by Customer; or

(d) any change in the customer of, or the requirements of the customer of Customer.

3.5 The parties agree to act reasonably and in good faith when dealing with a request to vary any of the Services or Key Performance Indicators.

4. SUB-CONTRACTING

4.1 The parties agree and acknowledge that NGX is to sub-contract all of the Services subject to the terms of this agreement.

4.2 NGX shall ensure that:

(a) the Sub-Contractors comply at all times with all Applicable Laws;

(b) whenever a Sub-Contractor is in a Service Area, such Sub-Contractor shall comply at all times with all applicable site rules relating to such Service Area as communicated to the Sub-Contractor and/or NGX in writing from time to time;

(c) the Sub-Contractors are competent to provide the Services, properly supervised and trained in the necessary skills and appropriately qualified and licensed (where necessary) to perform the Services undertaken by them; and

(d) the Sub-Contractors at all times skilfully and diligently provide the Services and comply with all reasonable and lawful directions given by or on behalf of Customer and will not do anything which may jeopardise or injure the business of Customer and/or the Customer’s business.

4.3 NGX remains responsible for all subcontracted, delegated or assigned Services, functions, responsibilities and obligations. NGX will be liable for all acts, omissions, defaults and neglects of any Sub-Contractor as if they were NGX's acts, omissions, defaults or neglects.

4.4 To the extent permitted by law, no Sub-Contractor will have any rights under this agreement against Customer or be entitled to receive any payment under this agreement from Customer.

5. EQUIPMENT

5.1 NGX shall ensure that the Sub-Contractors provide and maintain, at their own cost and expense, all Vehicles, labour, equipment and materials required for the performance of the Services.

5.2 NGX will ensure that:

(a) only Vehicles maintained to the highest industry standards, well presented, safe and kept in first-rate working order and condition and appropriately licensed and/or certified and which are suitable for the purpose for which they are intended will be allocated for the transportation of Goods; and

(b) only experienced and currently and fully licensed drivers with good safety records, are made available for driving duties.

(c) Sub-Contractors Vehicles comply with both NGX policies and all Applicable Laws.

6. COMPUTER MANAGEMENT SYSTEMS

6.1 NGX shall make available the Computer Management Systems and shall:

(a) maintain the Computer Management Systems in sound working order and will ensure that the Computer Management Systems are supplied with appropriate maintenance and support facilities;

(b) provide such data generated by the Computer Management Systems to Customer in an electronic format as requested by Customer on a daily basis or as otherwise advised by Customer. Such data shall not include personal data;

(c) implement and maintain a best practice disaster recovery process, to be approved by Customer, in relation to the Computer Management Systems; and

(d) provide all reasonable training in the operation of the Computer Management Systems for its employees, agents and Sub-Contractors who will use the Computer Management Systems.

6.2 NGX will not knowingly introduce (or allow to be knowingly introduced) and will take reasonable steps to prevent the introduction of a computer virus or other malicious software code into Customer's computer systems in connection with this agreement.

7. OWNERSHIP OF GOODS

7.1 The Goods shall at all times remain the property of Customer or the Consignee or other third party, as the case may be, and nothing in this agreement shall give NGX or any Sub-Contractor any claim or lien over the Goods or affecting the Services.

8. HEALTH AND SAFETY AND COMPLIANCE

8.1 NGX shall:

(a) implement and maintain a health and safety system which complies with Customer's health and safety policies and ensure that all Sub-Contractors comply with such health and safety system;

(b) implement and maintain, and ensure that all Sub-Contractors implement and maintain, satisfactory procedures for the monitoring, testing and remedying of unsafe work practices (including drug and alcohol testing, Vehicle driver skill, fitness and behaviour), and shall, and shall procure that its Sub-Contractors shall, take all necessary steps to monitor and improve such procedures and ensure that they comply with all legal requirements;

(c) ensure that each Sub-Contractor maintains all equipment used in the performance of the Services in a safe condition and that each Sub-Contractor shall immediately cease to use such equipment if it considers that such equipment is unsafe;

(d) comply, and ensure its Sub-Contractors comply with all Applicable Laws in performing the Services, including laws that deal with:

a. registration of the Vehicles;

b. heavy vehicle safety, mass, dimension and load restraint regulations;

c. environmental requirements, emission controls and noise standards;

d. road safety, speeding, road rules, parking and traffic management;

e. occupational health and safety (and manual handling, prevention of falls, ventilated work spaces, rest and meal breaks);

f. dangerous and hazardous goods including any signage requirements;

g. food transport and hygiene;

h. ports and maritime security; and

i. fatigue management, driving hours and log books.

(e) comply, and ensure its Sub-Contractors comply, with any reasonable safety instructions given by Customer from time to time (including an instruction for a driver to undergo a drug and alcohol test);

(f) be responsible for the health and safety performance of all of its Service Providers.

8.2 When carrying out any of its obligations under this agreement at any of the Service Areas, NGX shall ensure that the Service Providers comply with all health and safety rules and requirements of Customer or the occupier of the Service Area (as the case may be) which have been notified to NGX.

8.3 Customer and NGX will each notify the other as soon as possible of any incident it becomes aware of resulting from or relating to performance of the Services at any Service Area involving Customer's equipment, NGX’s equipment, or that of any Sub-Contractor and shall each provide the other with such assistance as it may require to conduct an incident investigation.

8.4 NGX shall take all practicable steps to ensure that no act or omission by any Service Provider or any of the invitees, visitors or licensees of any Service Provider:

(a) causes a hazard or harm to any employee, contractor, invitee or licensee of Customer, or any person lawfully at any Service Area; or

(b) is a breach of any duty or obligation of a Service Provider or Customer under the Health and Safety at Work Act 2015; or

(c) does or is likely to give rise to the issue of an improvement or prohibition notice, enforcement proceedings or a prosecution under the Health and Safety at Work Act against Customer.

8.5 Each of Customer and NGX will promptly notify the other as soon as possible of any relevant hazards or potential hazards relating to any Service Area which may be identified during the term of the agreement.

8.6 NGX shall be responsible for ensuring that the Service Providers and any invitees, visitors or licensees of any Service Provider are kept aware of the health and safety rules, requirements and policies notified to it by Customer, including details of any changes to such rules, requirements and policies.

8.7 NGX shall perform the Services in respect of dangerous Goods subject to the following:

(a) Customer must supply NGX with any declaration or other documentation required by the Supplier or by any Applicable Laws in relation to dangerous goods; and

(b) Dangerous goods must be packed, labelled and loaded in accordance with all Applicable Laws, and in accordance with any procedures, guidelines or code of practice specified by the NGX and notified to Customer.

8.8 NGX may refuse to perform the Services in respect of any shipment of Goods if it reasonably believes that:

(a) Such shipment of Goods is improperly packed or sealed; or

(b) The requirements set out in clause 8.7 have not been adhere to.

9. ENVIRONMENTAL

9.1 In carrying out the Services and its obligations under this agreement NGX shall comply, and shall ensure that each of the Service Providers complies, with:

(a) all Applicable Laws including relevant environmental laws, codes, regulations and standards;

(b) all relevant environmental policies and procedures of Customer as communicated to NGX from time to time.

10. CUSTOMER OBLIGATIONS

10.1 Customer will ensure that NGX is provided, on a continuing basis, with all current and applicable Customer policies and Customer and statutory safety and compliance requirements.

10.2 Customer will provide, in a timely manner, all service requirements including but not limited to, the cargo transport order and Dispatch Note, exclusively via electronic data interchange or other methods as agreed with NGX to enable it to provide the Services or to otherwise perform its obligations under this agreement.

10.3 Customer will ensure that any and all Goods, products or materials being carried or stored by NGX and/or the Sub-Contractors are fit and appropriate for carriage and storage and that the possession, carriage or storage of such products and materials is not in breach of any Applicable Laws. Nothing in this clause 10.3 will relieve NGX from any of its obligations under this agreement.

10.4 Customer shall ensure during the term of the agreement that the Guaranteed Volumes of Goods as set out in Schedule 1 are provided to NGX in order to perform the Services. Failure to meet minimum volumes for three consecutive months shall be considered a material breach for the purposes of clause 18.3.

10.5 Customer shall comply with NGX’s National Pallet Policy.

10.6 The Customer shall actively engage with NGX throughout the term of the agreement by providing the appropriate people to attend Management Meetings to consider improvements to the Services and Freight Service Fees for the mutual benefit of the parties, and to discuss any other issues relating to the performance of the Services.

10.7 The Customer warrants that it will not approach, solicit or communicate directly with or permit their Affiliates, representatives, subcontractors or personnel to approach, solicit or communicate directly with, any subcontractor of NGX that has at any time been engaged by NGX to undertake the Services for the Customer, other than where necessary for the Customer to comply with their obligations under this agreement. A breach of this clause shall constitute a material breach in accordance with clause 18.3(a)i.

11. RATES AND PAYMENT PROCEDURE

11.1 Customer will pay NGX the Freight Service Fees for the Services. Freight Service Fees are exclusive of GST and subject to FAF and CPI including changes to statutory charges and levies.

11.2 Unless otherwise stated, goods and services tax (“GST”) (if any) in respect of the supply of services under this agreement will be payable in addition to any other amounts payable under this agreement. Customer and NGX, as the case may be, shall pay to the other of them the GST payable (if any) in respect of the supply of Services under this agreement contemporaneously with payment of such other amounts.

11.3 The Freight Service Fees shall be adjusted for FAF and CPI. NGX reserves the right, at its sole discretion, to adjust the Freight Service Fees by CPI no less than 2 times per calendar year.

11.4 NGX or its Affiliates will invoice Customer weekly for the Freight Service Fees due and owing to NGX for the Services;

11.5 Each invoice shall contain sufficient information to enable Customer to establish the accuracy of the invoice, including a description of the Services to which the invoice relates and be in the form of a tax invoice for GST purposes.

11.6 Customer will pay NGX or its Affiliates all amounts due in accordance with the Payment Terms set out in Schedule 1. Interest shall accrue on overdue payments from the date payment becomes due until the date of payment at a rate of 2% per month, calculated daily.

11.7 Each invoice shall be issued by electronic mail.

11.8 If Customer in good faith disputes the accuracy of any invoice, Customer shall give notice of that fact to NGX. That notice shall state the basis of the dispute and give relevant supporting details. On receipt of such notice, NGX shall credit the disputed invoice and issue one invoice for the undisputed portion of the disputed invoice and one invoice for the disputed portion. Customer shall pay the undisputed invoice but may withhold payment of the portion disputed. Customer and NGX will discuss, in good faith, the disputed invoice and will use their best endeavours to settle the dispute. If the parties do not resolve the dispute within twenty (20) working days of the date of the notice of dispute, the dispute shall be determined in accordance with clause 16.

11.9 Material Change to Rates: If there has been a material change in either party’s circumstance, beyond their control, the parties agree to meet in good faith and discuss the Rates.

12. INTELLECTUAL PROPERTY

12.1 Customer and NGX agree that except as is expressly provided for in this agreement, use by one party of Intellectual Property provided by the other party pursuant to this agreement will not transfer any right, title or interest therein.

13. LOST OR DAMAGED GOODS

13.1 Damage or Lost Goods: NGX must promptly provide Customer with details of any damage to or loss of any Goods occurring during the Period of Control.

13.2 Goods Acceptance & Delivery: NGX and/or its Sub-Contractors must check and make note of any damage to the Goods before acceptance of the Goods at the Dispatch Points such note should be made on the Dispatch Note counter signed by the despatch personnel at Dispatch Points. NGX reserves the right to refuse to perform the Services in respect of damaged Goods.

13.3 The Consignee shall check and make note of any damage or contamination to the Goods at the Delivery Point. Such note should be made on the Dispatch Note. A Dispatch Note without any reference to damage or contamination to the Goods shall be deemed to be acceptance of Goods in full and in an undamaged condition.

13.4 If Goods are not accepted by Consignee due to damage or contamination occurring during the Period of Control, NGX will return to Customer any Goods, if required by Customer.

13.5 If the Consignee requests that Goods or part of Goods be returned or be sent to another destination, NGX will endeavour to determine the reasons for the return or redirection of the Goods and will consult with Customer as soon as possible to determine how to deal with the Goods in question.

14. LIABILITY

14.1 Liability for loss to Goods: The provision of the Services under this agreement are subject to the CCLA and as such, the Goods are carried at “limited carrier’s risk”, as set out in the CCLA. In the event that the CCLA does not apply, NGX and its Affiliates accept no liability whatsoever arising directly or indirectly as a result of any act or omission by NGX, its Affiliates, a Sub-Contractor or Service Provider for any loss or damage caused to Goods arising out of this agreement or during the course of performing the Services.

14.2 Exclusions: Subject to clause 14.3:

(a) in no event shall either party be liable to the other party or their respective Affiliates for any special, indirect, incidental, punitive, exemplary or consequential loss; any loss of revenue; loss of profits; loss of data; or lost opportunity.

(b) To the extent allowed under any Applicable Laws, NGX excludes all liability for any claims (as defined below) by the Customer and its Affiliates in connection with or arising out of this agreement or relating to the Services.

14.3 Where clauses 14.1 and 14.2 cannot legally operate and to the extent permitted by any Applicable Laws, NGX’s and its Affiliate’s liability (including for breach of any warranty, guarantee or any term implied by law into this agreement) is limited to (at NGX’s option):

(a) re-supplying the Services; or

(b) paying the cost of re-supplying the Services.

14.4 Except as expressly set out in this agreement, NGX and its Affiliates makes no warranties or other representations in relation to the Services including, but not limited to, the quality or suitability of the Services.

14.5 For the purposes of this clause 14, “claims” shall mean any claim made (whether in the form of an allegation, demand, suit, action or other proceeding of any kind) under or in connection with this agreement or the Services, whether arising under contract (including under any warranty, guarantee or any term implied by law into this agreement or indemnity or any other breach, actual or anticipatory), in equity, in restitution, negligence or any other tort, strict liability, under statute or otherwise at all. No claims shall be accepted from Customer or its Affiliates more than 90 days after the date the Goods are collected from the Dispatch Point or at any point after the receipt of a signed Proof of Delivery.

14.6 Indemnity by Customer: Customer shall indemnify and keep indemnified NGX, its Affiliates, its Sub-Contractors and Service Providers from all direct costs, damages, fines, penalties, loss and expense incurred or suffered by NGX or its Affiliates arising as a result of or caused by the negligence of Customer, its Affiliates, its employees, contractors or agents, including loss of or damage to property, except to the extent that any such liability, loss or claim is caused or contributed to by any acts or omission or negligence of NGX, its Affiliates or their employees, its Service Providers, or Sub-Contractors.

14.7 Demurrage: If NGX incurs demurrage charges in the course of carrying out any of its obligations under this agreement, NGX shall be entitled to pass such demurrage charges on to the Customer. These demurrage charges will be included in NGX’s weekly invoice issued to the Customer pursuant to clause 11.4.

15. INSURANCE

15.1 NGX shall obtain, and maintain during the term of this agreement the following insurance policies:

(a) public liability insurance for an amount not less than $20,000,000 including liability arising from:

i. death of, or bodily injury (including disease or illness) to, any person; and

ii. which shall cover all such liability which may arise in respect of the acts or omissions of NGX or any Sub-Contractor.

15.2 NGX shall upon request provide Customer with evidence of such insurance cover and the payment of premiums.

15.3 If the Customer wishes to insure the Goods, it is the Customer’s sole responsibility to arrange that insurance.

16. DISPUTE RESOLUTION

16.1 Either party may by written notice require any dispute between the parties arising out of or in connection with this agreement (“Dispute”), which has not been resolved within ten (10) Working Days, to be referred to mediation. The costs and expenses of the mediator shall be shared by the parties equally.

16.2 In the event the Dispute is not resolved by mediation within twenty (20) Working Days of the notice given under clause 16.1, either party may take such legal action, including the commencement of legal proceedings, as is deemed appropriate or necessary to resolve or determine the dispute.

16.3 The provisions of this clause 16 shall not limit or affect the right of either party to apply to a court at any time for any interim or preliminary relief in respect of the Dispute.

17. MODERN SLAVERY

NOT USED.

18. TERMINATION

18.1 Term of agreement: This agreement commences on the Commencement Date and will continue until terminated in accordance with this agreement.

18.2 Termination: This agreement may be terminated by either party by giving 90 days’ written notice of termination to the other party.

18.3 Termination for default: A party may (in addition to any other legal remedies) terminate this agreement with immediate effect by giving written notice to the other party if:

(a) if the other party commits any material breach of any material term of this agreement and:

i. the breach is not capable of being remedied; or

ii. the breach is capable of being remedied and the defaulting party fails to remedy the breach within ten (10) Working Days after notice in writing has been given to the defaulting party requiring such breach to be remedied;

(b) if the other party:

i. makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, that party’s creditors; or

ii. goes into receivership or has a receiver, trustee and/or manager (including a statutory manager) appointed in respect of all or any of that party’s property; or

iii. is the subject of liquidation proceedings commenced in the High Court.

18.4 Termination of this agreement shall be without prejudice to any rights, liabilities or obligations of the parties arising or accruing under the agreement prior to the date of termination.

18.5 Each party will pay to the other on the date of termination of this agreement (or as soon as is reasonably practicable thereafter) all accrued and unpaid fees, rates and charges (through to and including the date of termination), including pursuant to clause 11, notwithstanding that the date for payment may not have passed under this agreement. Any periodic fees shall be apportioned on a daily basis. Any provisions in this agreement necessary to determine, and provide for the payment of, such fees, rates and charges shall survive termination.

18.6 After written notice of termination is issued, NGX will comply with Customer's reasonable direction as to the continued provision of Services for the remainder of the term of the agreement. When this agreement ends:

(a) except in the case of termination by NGX for a breach by Customer that has not been or is incapable of remedy, NGX will cooperate fully and in good faith with Customer to transfer provision of Services to another supplier, will use its best efforts to minimise any disruption in the provision of Services, and will continue to provide Services under this agreement for a reasonable transition period, as long as Customer continues to pay for such Services; and

(b) each party will, at the written request of the other, promptly return, destroy, or transfer elsewhere as directed by the other, any of the other’s Confidential Information and other property in its possession.

19. FORCE MAJEURE

19.1 For the purposes of this clause 19, a "Force Majeure Event" shall mean any matter or event which is beyond the reasonable control of Customer or NGX and which the relevant party could not take reasonable measures to prevent and shall include, without limitation, any or all of the following events or occurrences and the effects thereof: acts of God or the public enemy, flood, earthquake, storm, cyclone, tornado, hurricane, lightning, fire, explosion, epidemic, war, embargoes, riot or civil disturbances, strikes or other labour disputes (but excluding any strike or labour dispute relating to a Service Provider’s own business), sabotage, expropriation, confiscation or requisitioning of facilities, orders or temporary or permanent injunctions of any duly constituted court of competent jurisdiction. For the avoidance of doubt, a lack of funds of the relevant party shall not constitute a Force Majeure Event.

19.2 Where either Customer or NGX is unable, wholly or in part, by reason of a Force Majeure Event to carry out any obligation under this agreement and;

(a) gives the other party immediate notice of the Force Majeure Event; and

(b) uses all reasonable diligence to remove the Force Majeure Event as quickly as possible,

that obligation is suspended so far as it is affected by the Force Majeure Event during its continuance.

19.3 Upon receipt of any notice given by NGX pursuant to clause 19.2(a), Customer and NGX shall have twenty four (24) hours to discuss whether alternative arrangements can be made to overcome the Force Majeure Event. Failing agreement within such twenty four (24) hour period, Customer shall be entitled to make alternative arrangements for the provision of such Services affected by the Force Majeure Event for the duration of such Force Majeure Event (including, without limitation, through outsourcing to third parties). For the avoidance of doubt, and subject to clause 18.6, following the end of the duration of the Force Majeure Event any such Services shall be brought back under the scope of this agreement as soon as reasonably practicable.

19.4 If by reason of the Force Majeure Event, the delay or non-performance of all or substantially all of the Services continues, or is reasonably likely to continue, for more than twenty (20) Working Days, the party not relying on the Force Majeure Event may terminate this agreement by written notice to the other party and clause 18.5 shall apply to the extent relevant.

20. CONFIDENTIAL INFORMATION

20.1 Except as required by law or by a rule of any applicable Stock Exchange, neither party shall during or after term of this agreement, make any announcement or disclosures as to the subject matter or any of the terms of this agreement, or use, exploit or disclose to any person any Confidential Information supplied by any other party to this agreement, or otherwise acquired by that party pursuant to this agreement, without the prior written consent of the other party. To the extent that a party discloses Confidential Information to its employees, agents or subcontractors for the purposes of this agreement, that party shall take all reasonable steps to ensure that the confidentiality of the information disclosed is maintained.

21. NOTICES

21.1 All notices, claims and other communications to be given pursuant to or in connection with this agreement shall be in writing and may be delivered either personally or sent by pre-paid mail or transmitted by email addressed to the other party or parties, as the case may be, at the address set out below, or to such other address as may be provided by a party from time to time:

Customer [insert customer name]

Email: [insert]

Attention: [insert]

NGX [insert Netlogix party name]

Level 2, 632 Great South Road, Ellerslie, Auckland 1051

PO Box 11 785, Ellerslie, Auckland 1542

Email: contractnotices@netlogixgroup.com

Attention: CEO

21.2 Notices given pursuant to or in connection with this agreement shall be deemed to have been duly given:

(a) On the date of receipt if delivered personally;

(b) Two (2) days after the date of posting, if transmitted by mail;

(c) If sent by email, at the time the email enters the information system of the intended recipient.

22. RELATIONSHIP

22.1 The relationship between Customer and NGX is that of company and independent contractor and nothing in this agreement will be taken as constituting NGX or NGX's employees or agents as employees or agents of Customer.

22.2 NGX acknowledges that, except to the extent otherwise expressly provided herein:

(a) It is not the legal representative, agent, joint venturer or partner of Customer for any purpose; and

(b) It has no right or authority to assume or create any obligations of any kind or to make any representations or warranties, whether express or implied for or on behalf of Customer or to bind Customer in any respect.

22.3 Customer acknowledges that it will (subject to this agreement) only have the right to exercise such supervision or control over NGX as is appropriate to the relationship of company and independent contractor.

23. ASSIGNMENT AND CHANGE OF CONTROL

23.1 Customer may not assign or novate any or all of its rights and/or obligations under this agreement to any person without the prior written consent of NGX, such consent not to be unreasonably withheld.

23.2 Except as provided for under this agreement, NGX may not assign or novate any or all of its rights and/or obligations under this agreement to any person without the prior written consent of Customer, such consent not to be unreasonably withheld.

24. GENERAL

24.1 Notwithstanding that any Service Provider may, from time to time, deliver or purport to deliver to Customer Dispatch Notes, notices, invoices or other documents relating to the Goods and/or the Services which refer to the standard terms and conditions of such Service Provider which employees of Customer may accept or appear to accept, NGX acknowledges and agrees that:

(a) Customer shall not be bound by any such terms and conditions and that this agreement shall constitute the entire agreement between the parties in connection with the provision of the Services and all matters related thereto; and

(b) Any previous agreement, correspondence, understanding or representation relating to the provision of the Services and all matters related thereto shall cease to have any effect.

24.2 In the event that any clause or part of any clause contained in this agreement is declared invalid or unenforceable, all other clauses or parts of clauses contained in this agreement shall remain in full force and effect and shall not be affected thereby.

24.3 No waiver of any breach of, or failure to enforce any provision of, this agreement at any time by any of the parties shall in any way limit the right of such party thereafter to enforce and compel strict compliance with the provisions of this agreement.

24.4 This agreement shall not be varied except in writing signed on behalf of both Customer and NGX.

24.5 This agreement shall be governed by and construed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand.

24.6 Each party will promptly do every reasonable thing (including executing such further documentation) as is necessary to perform this agreement.

24.7 This Agreement may be executed in any number of counterparts (including by facsimile or pdf transmission copies) and, provided that both parties have executed a counterpart of this Agreement, the counterparts together shall constitute a binding and enforceable agreement between the parties.

24.8 The following clauses shall survive termination of this agreement: clause 7, 12, 5, 15, 19 and 23