ROGUE UNIT LIMITED
STANDARD TERMS AND CONDITIONS
Background
1.1 Rogue Unit Limited (“Rogue Unit”, “we”, “our”, “us”) and the Client (“Client”, “you”, “your”) have agreed that Rogue Unit shall provide the Services to the Client.
1.2 These terms and conditions and the Quote (together, referred to as the “Agreement”) set out the terms on which Rogue Unit shall provide any Services to the Client.
Services
Offers
2.1 Unless accepted in writing, any Services offer we make lapses 30 days after it is made. Any revised offer we make before the prior offer to which it relates is accepted in writing revokes that prior offer.
2.2 Services will not commence until we have an agreed Quote for them.
Supply of services
2.3 The Services are confined to the work specified in the Quote. Alterations to the proposed scope of work due to scope changes, force majeure events or delays beyond our control will be the subject of an additional charge or new Quote which either will be agreed or will be charged in accordance with our then applicable current charge rates.
Further services
2.4 Further services (in addition to those already included in an Agreement) may be available from time to time on request, at additional cost, provided that the further services are recorded in an agreed Quote(s) or are agreed in writing between the Parties. All further services shall be supplied on these terms and conditions.
Rogue Unit Obligations
2.5 We will perform the Services during the Term with reasonable skill and care, and in accordance with the Quote.
2.6 We will endeavour to provide continuous and uninterrupted Services at all times, however the Services provided to the Client are not fault free and rely on factors outside of the direct control of Rogue Unit, including the particular characteristics of each Location.
2.7 If the Services deteriorate, Rogue Unit will work to restore the Service levels in a timely manner. This process may include temporarily providing an alternative service using a generator, alternative WAN source, back-haul technique or any other means of temporary solution available.
Client Obligations
2.8 You agree to promptly provide us with all assistance, information and documentation necessary to enable us to provide the Services.
2.9 In the event that our performance of any of our obligations under the Agreement is prevented or delayed as a result of any act or omission by you ("Client Default"), we:
(a) Shall have the right to suspend the performance of the Services until you remedy the Client Default (without limiting our other rights or remedies);
(b) May charge you additional fees and Charges in accordance with our standard rates on account of any additional time spent, additional work required, and/or costs incurred on a recovery basis only as a result of the Client Default; and
(c) Shall not be liable for such failure or delay and any timing for performing Services shall automatically be extended by the duration of the delay.
Reliance on Client Information
2.10 You acknowledge that we may be required, in the course of providing the Services, to make assessments based on information supplied either by you or others. We will rely on this information and not verify its accuracy and completeness. You agree that we will not be liable (whether in negligence or otherwise) for any loss or damage you or any other person sustains, directly or indirectly, in connection with our reliance on that information.
Acceptance
2.11 You will be responsible for confirming acceptance of Services. Services identified by you as incomplete or defective will be promptly remedied by us. If we are not notified in writing of incomplete or defective Services within ten (10) days of supply to you, then the Services will be deemed to be accepted.
Suspension of Services
2.12 We may suspend, disconnect or discontinue the Services in whole or part at any time without notice and without compensation, if in our reasonable opinion:
(a) It is necessary to safeguard the provision of the Service and integrity of the Services (including the Equipment) or Rogue Unit’s network;
(b) The Services fail or require modification or maintenance;
(c) Security situations, for example a DoS attack on a server, which threatens the stability of Rogue Unit’s network;
(d) There is or has been unauthorised, unlawful or fraudulent use of the Services or the Client’s use of the Services is causing or may potentially cause damage or interference to Rogue Unit’s network;
(e) It is necessary to comply with a direction, order or request of any government authority or other competent authority; or
(f) The Client fails to comply with any of the terms of this Agreement.
3. Equipment
Ownership of Equipment
3.1 You agree that ownership of the Equipment remains with us at all times, regardless of your possession and use of it, and any attachment of it to any land or premises to facilitate the use of it.
Equipment damage and replacement
3.2 You must immediately notify us in writing, and provide full details, of any loss, theft, fault, breakdown or damage to the Equipment.
3.3 If any Equipment becomes inoperable (“Faulty Equipment”), we may repair the Faulty Equipment where it is or at such location as we select or replace the Faulty Equipment with operable replacement Equipment (“Replacement Equipment”) of at least equivalent quality and capability as soon as may be reasonably possible, which will be at your cost if the Equipment became inoperable due to damage caused by you or due to your negligence, misconduct, user-error or breach of your duties under the Agreement.
Risk and Insurance
3.4 During the Term you must effect, at your own expense and with a reputable insurance company in New Zealand, the following insurances in the joint names of Rogue Unit Limited and the Client for their respective interests:
(a) Plant and equipment insurance for physical loss of, or damage to, the Equipment for the Insurance Value; and
(b) Such other insurance as we may reasonably require.
3.5 You must provide evidence of these insurances (including copies of insurance certificates, policies and receipts) to us on request.
3.6 If you fail to insure and maintain insurance cover under the Agreement, we may (without prejudice to our other rights and remedies) effect or keep the insurance policies on foot, either in our name or in the name of us and you, and may pay any premium or take any other step to keep the insurance policies on foot, and you must reimburse us for all money expended by us in effecting or maintaining on foot any such insurance policy.
3.7 If any money is paid to you by an insurance company under a claim relating to Equipment loss, damage or liability you must immediately pay such money to us.
3.8 If the insurance money we receive under a claim relating to Equipment loss, damage or liability is, in our opinion, inadequate to replace or repair the Equipment, then you shall immediately pay us the additional amount required by us to replace or repair the Equipment.
3.9 You irrevocably appoint us your attorney for the purposes of prosecuting or settling any claim for loss, damage or liability under any insurance policy effected by you covering the Equipment.
Retaking Possession
3.10 We or any person authorised by us may enter the Location or any place where the Equipment is kept or believed to be kept and retake possession of the Equipment and terminate the Agreement if:
(a) you breach any of your obligations under the Agreement;
(b) you suffer an Insolvency Event;
(c) you fail to insure the Equipment or the insurance is cancelled;
(d) you do or omit to do anything which might endanger the safety or condition of the Equipment;
(e) you have made a materially false statement or material omission when negotiating the Agreement; or
(f)an event or a series of events (whether related or not) occurs which, in our opinion, may cause a material adverse change in your ability to meet your obligations to us.
3.11 Nothing in clause 3.10 will release you from any past, present or future liability under the Agreement or at law. We shall not be responsible for any damage caused in the process of retaking the Equipment and you will indemnify us against liability to any other party should we retake these items.
4. General Terms
Charges and Payments
4.1 We will issue invoices weekly, unless otherwise agreed. You must pay our invoices within 7 days of the invoice date, without deduction or set-off, unless we agree otherwise in writing. We may charge interest at the rate of 2% above our overdraft rate per calendar month on any late payments calculated on a daily basis from the date payment is due until the date payment is received.
4.2 Unless otherwise agreed, all payments due under the Agreement shall be made by transfer of cleared funds into a bank account specified in writing by us.
4.3 You will not be entitled to a refund if you choose to end the Services before the end of the Term.
4.4 Services’ overtime will be charged in the following instances at the following rates (unless different overtime rates are specified in the Quote):
(a) Standard overtime is charged at 1.5X the service charge for Services supplied after the first 10 hours of Services and 2X after the first 12 hours of Services;
(b) For continuous hours shooting, overtime is charged at 2.5X the service charge for the Services supplied after the first 10 camera hours and 3X after the first 12 hours of Services;
(c) For Services supplied on the sixth consecutive day, Services are charged at 1.5X the service charge for the Services;
(d) For Services supplied on the seventh consecutive day, Services are charged at 2X the service charge for the Services; and
(e) For Services supplied during the Turnaround Period (broken turnaround), Services are charged at 1.5X the service charge for the Services.
GST and Taxes
4.5 Unless otherwise specified, Charges and other amounts to be paid under the Agreement are exclusive of any national, state or local sales, use, value added or other taxes (including GST), tariffs, duties or impositions of a similar nature imposed by any government or other authority which we may be required to pay or collect upon the supply of the Services. In the event the Charges and other amounts to be paid under the Agreement are subject to any such taxes or other costs, you shall pay us an additional amount to ensure that we receive the amount it would have received had no such withholding been made.
Health and Safety
4.6 If we are working on site at the Location or at your premises:
4.6.1 You shall promptly notify us of any health and safety policies in place on that site; and
4.6.2 We and our staff shall at all times comply with all reasonable health and safety requirements and safety-related instructions provided by you.
4.7 We and our staff do not assume any obligation, as your agent or otherwise, which may be imposed on you pursuant to the Health and Safety at Work Act 2015, and the parties agree that Rogue Unit and its staff will not be deemed to be a PCBU or an officer of the Client’s Production under that Act.
4.8 You shall:
(a) Ensure that our employees and contractors have full and safe access to the Location and Equipment at all reasonable times for purposes associated with the supply of the Services; and
(b) Provide reasonable working facilities for our employees and contractors, if they are working on site at the Location or at your premises.
Confidentiality
4.9 Each party will hold in confidence all Confidential Information received by it from the other party and will establish and maintain effective security measures to safeguard the Confidential Information from unauthorised access, use, copying or disclosure. Each party will only use the other party’s Confidential Information in order to carry out its obligations under the Agreement. In particular, we will not disclose any information relating to the Production without your prior written consent.
4.10 The obligations in clause 4.9 shall apply except:
(a) As authorised in writing by the party that supplied the information;
(b) As required by law; or
(c) To the extent that any Confidential Information is already or becomes public knowledge or is lawfully disclosed to the receiving party from another source, otherwise than as a result of a breach by the party.
4.11 The parties may disclose Confidential Information to their respective professional advisors, authorised contractors, auditors and insurers (together, “Advisors”) for the purposes of the Agreement, to obtain professional advice, or as required by law. Each party is liable for all acts and omissions of its Advisors related to the other party’s Confidential Information.
Intellectual Property
4.12 Each party and their respective licensors shall retain their rights in relation to Intellectual Property developed before the Agreement.
4.13 Subject to clause 4.12:
(a) All rights, title and interests (including Intellectual Property rights) in the Production shall be owned solely by the Client; and
(b) Any Intellectual Property (including all Intellectual Property rights in improvements, techniques, proprietary processes and information, recommendations, know-how, materials and documentation) developed by Rogue Unit for the purposes of providing any Services shall vest in Rogue Unit from the time it is developed.
Termination
4.14 In addition to any other express termination right under the Agreement, either party may terminate the Agreement immediately on written notice if:
(a) The other party commits a material breach of the Agreement which is not rectifiable;
(b) The other party fails to rectify a material breach of the Agreement which is rectifiable within 10 Working Days after receiving a written notice specifying the breach and requiring rectification;
(c) The other party suffers an Insolvency Event; or
(d) Upon written mutual agreement between the parties.
4.15 Upon termination or expiry of the Agreement for any reason:
(a) We shall provide you with an invoice for all Services which have been supplied but for which no invoice has yet been submitted, such invoice to be payable immediately upon receipt;
(b) You shall immediately pay to us all of our outstanding unpaid invoices, including any invoices received pursuant to (a);
(c) Each party shall immediately return or destroy all Confidential Information of the other party (at the other party's election), except to the extent that the party is required by law to retain a copy;
(d) All accrued rights, remedies, obligations, and liabilities of the parties as at expiry or termination shall remain unaffected; and
(e) Clauses which are intended (expressly or impliedly) to survive termination shall continue in full force and effect.
Liability
4.16 If we breach any term or condition expressly stated in the Agreement, or any term or condition that cannot legally be excluded from the Agreement, or we are otherwise found liable (for any reason, including negligence), then our entire liability shall be limited to the Charges paid by you under the Agreement in the 12-month period preceding the breach (or, if there is more than one breach, the date of the first breach) or the event giving rise to the liability, provided that we shall have no liability for any lost profits, lost revenue, business interruption or loss, data loss, reputational damage, or any indirect or consequential loss or damage.
4.17 Except as provided in clause 4.16, we shall not be liable for any loss, damage or expense whatsoever relating to or arising from the Agreement or any use, inability to use, or reliance upon the Services.
4.18 No claim arising out of the Agreement, regardless of form, may be brought by you more than 12 months after the event that gave rise to that right of claim.
Exclusions
4.19 Except as expressly provided in the Agreement, to the extent permitted by law, all legal, statutory or equitable liability, conditions or warranties of any type in relation to Services are excluded.
4.20 It is your sole responsibility to evaluate the Services (including the Equipment) before entering the Agreement to determine whether the Services are suitable for your intended uses and are compatible with any Client or third party hardware or software.
4.21 You acknowledge that you are acquiring Services from us for business purposes only, and that the Consumer Guarantees Act 1993 and Sections 9, 12A and 13 of the Fair Trading Act 1986 shall not apply.
4.22 You shall hold and keep us fully indemnified against all costs, losses, claims, or damages (including our full legal expenses) incurred or suffered as a consequence of any:
4.22.1 Default or breach of your obligations under the Agreement;
4.22.2 Damage to the Equipment whilst in your possession or due to the negligence, misconduct or user-error by you or any other persons (excluding us) involved in the Production; or
4.22.3 Wilful misconduct or omission by you.
4.23 The indemnities in clause 4.22 are in addition to any indemnities or remedies provided elsewhere in the Agreement or available at law.
Default
4.24 If you breach your obligations under the Agreement we may, at our discretion and without prejudice to our other rights and remedies:
(a) require you to remedy the breach in the manner and within the period notified by us; and/or
(b) require you to pay all amounts you owe us under the Agreement immediately.
Non-Solicitation
4.25 During the Term and for twenty-four months after the expiry or termination of the Agreement, you will not employ or engage, or procure a third party to employ or engage, any person that is or was an employee, contractor or subcontractor of ours during the Term. If you breach this clause, we will be entitled to liquidated damages from you equal to the compensation paid by us to the applicable employee, contractor or subcontractor during the prior twenty-four months.
Privacy
4.26 If you submit or upload Personal Information to us, you consent to the collection, use, processing, transmission and disclosure of that information by us, for the purposes of providing the Services. You warrant that you have obtained all necessary consents to disclose the Personal Information to us, and for us to retain and use that information for the supply of the Services.
4.27 Both parties agree to comply with the Privacy Act 2020 and shall take all practical steps to achieve privacy protection.
Notices
4.28 Any notice required to be given by the Agreement shall be given in writing either personally or by email to the recipient’s last known address for that type of communication.
Disputes
4.29 If a party claims that a dispute has arisen in relation to the Agreement, that party may at any time give written notice to the other party. The notice must adequately specify the nature of the dispute.
4.30 On receipt of a notice delivered in accordance with clause 4.29, the parties must, in good faith and acting reasonably, do their best to resolve the dispute quickly through confidential negotiation.
4.31 If the parties do not resolve the dispute by negotiation within 10 Working Days of a notice being delivered in accordance with clause 4.29, then the dispute shall be escalated to the respective chief executives (or equivalent) of the parties, who must, in good faith, endeavour to resolve the dispute on mutually acceptable terms.
4.32 Where escalation occurs, the parties’ respective chief executives (or equivalent) shall meet (or otherwise communicate, if a meeting is not practicable) and attempt to resolve the dispute through good faith negotiations on a ‘without prejudice’ basis.
4.33 Neither party shall commence any arbitration or litigation in relation to the Agreement unless 10 Working Days has passed since the parties’ respective chief executives (or equivalent) have met (or otherwise communicated) and endeavoured in good faith to resolve the dispute on mutually acceptable terms.
4.34 Any dispute arising under the Agreement which cannot be settled by negotiation between the parties shall be submitted to arbitration in accordance with the procedures specified in Schedule A. The parties shall continue to perform their obligations under the Agreement as far as possible as if no dispute had arisen pending the final settlement of any matter referred to dispute resolution pursuant to this clause.
4.35 Nothing in the Agreement shall preclude either party from taking immediate steps to seek urgent equitable relief.
Other Terms
4.36 The parties acknowledge that they are not partners, joint-venturers, fiduciaries or agents of the other.
4.37 During the Term, each party shall comply with all applicable laws relevant to the Services.
4.38 The Agreement will be governed by and shall be construed in accordance with New Zealand law (excluding sections 202 – 206 of the Contract and Commercial Law Act 2017 (United Nations Convention on Contracts for the International Sale of Goods)). You irrevocably submit to the non-exclusive jurisdiction of the New Zealand courts.
4.39 If any provision (in full or part) of the Agreement is or becomes illegal, invalid, unenforceable, void or voidable, it shall not affect the legality, validity or enforceability of the other provisions or other part of any provision of the Agreement and shall be severed from the Agreement so that the remaining provisions or other part of any provision shall remain in full force and effect and shall be valid and enforceable to the fullest extent permitted by law.
4.40 The Agreement constitutes the entire understanding and agreement between the parties in relation to the subject matter it deals with, and supersedes all previous agreements and understandings between the parties relating to the same subject matter. Any documents supplied by you which contain any terms and conditions shall have no effect to the extent that they are inconsistent with the Agreement. In the event of any conflict or discrepancy arising between the Quote and these terms and conditions, the contract documents shall be interpreted in the following order of precedence to the extent required to resolve the conflict or discrepancy:
(a) Quote (including any Additional Terms and Conditions); and
(b) These terms and conditions
4.41 You may not assign, sub-contract or sub-license any of your liabilities or rights under the Agreement to any other person, without our prior written consent. We may assign or sub-contract all or any part of our rights and obligations by written notice to you.
4.42 You will do, sign, execute and deliver (and procure that each of its personnel will do, sign, execute and deliver) all such documents and things as are necessary to give full effect to the Agreement.
4.43 No variation or waiver of or any consent to any departure by us from a provision of the Agreement is of any force or effect unless it is confirmed in writing and then that variation, waiver or consent is effective only to the extent for which it is made or given.
4.44 No failure or delay by us to exercise any power, remedy or right in relation to the Agreement shall:
4.44.1 Prejudice, limit, affect or operate as a waiver of that power, remedy or right; or
4.44.2 Be deemed to waive any default or breach of any obligation, liability or agreement by you.
4.45 The exercise or partial exercise of any power, remedy or right shall be without prejudice to our right to exercise that or any other power, remedy or right at the same time (except insofar as the exercise of any power, remedy or right is inconsistent with the exercise of any other power, remedy or right) or in the future.
4.46 We will not be liable for any failure or delay in performing an obligation under the Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, terrorist acts, governmental acts or omissions, laws or regulations, labour strikes or difficulties, pandemics, epidemics, transportation stoppages or slowdowns, communications failures or hardware failures (together, referred to as “force majeure events” in these terms and conditions).
5. Definitions
In these terms and conditions, unless context requires otherwise:
“Additional Terms and Conditions” means any additional terms and conditions recorded in the Quote.
“Agreement” means the agreement between us and you, which comprises the Quote and these Terms and Conditions.
“Charges” means the charges for the Services, together with any related or further charges, as specified in the Quote or as provided in these terms and conditions.
“Confidential Information” means information of a confidential nature in whatever form or medium and whether disclosed orally or in writing and whether or not that information is marked “confidential”, including information relating to the businesses and affairs of a party (including information relating to the Production), Rogue Unit’s offers, Quotes, Charges and the details of our processes used in connection with providing the Services. Confidential Information may include proprietary information of third parties who have granted licenses to or have contractual relationships with the disclosing party. Where information or material relates exclusively to one party, nothing in the Agreement shall require that party to maintain confidentiality in respect of that information or material.
“Equipment” means the equipment specified in the Quote, together with any further equipment provided by us in order to supply the Services and any Replacement Equipment and/or parts leased pursuant to the Agreement.
“Insolvency Event” means, in respect of any party, the occurrence of one or more of the following events:
(a) except for the purposes of a solvent reconstruction or amalgamation, an application is made, proceedings commenced, or a resolution is passed or proposed in a notice of meeting for the winding up, dissolution, official management or administration of the relevant party;
(b) the relevant party enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them;
(c) the relevant party is, becomes or is deemed insolvent or bankrupt within the meaning of Companies Act 1993 and Insolvency Act 2006 respectively;
(d) a receiver, receiver and manager, official manager, provisional liquidator, or official assignee is appointed with respect to the relevant Party or any of its assets; or
(e) execution or distress is levied against you or your assets.
“Insurance Value” means the value of the Equipment (at full replacement value) supplied to the Client:
(a) As recorded in the Quote; or
(b) If not recorded in the Quote, then as specified by us in writing; or
(c) If not recorded in the Quote or specified by us in writing, then no less than $250,000.
“Intellectual Property” means:
(a) patents, rights in inventions, know-how and trade secrets, copyright and related rights, moral rights, registered designs, design rights, database rights, trademarks and service marks, trade and brand names, get up, logos, domain names and URLs, and any other intellectual property rights (in each case, whether or not registered, and including all applications to register and rights to apply to register any of them, and all rights to sue for any past or present infringement of them); and
(b) all rights or forms of protection having equivalent or similar effect in any jurisdiction.
“Location” means the location(s), premises or address(es) at which the Services will be provided, as specified in the Quote or otherwise agreed by the parties.
“Personal Information” has the meaning as defined in the Privacy Act 2020 (NZ).
“Production” means the Client’s production for which the Services are supplied.
“Services” means (collectively) the services we will provide to you as specified in the Quote including supply of relevant Equipment, together with the further services described in these terms and conditions, and any further services requested by you or supplied by us during the Term.
“Term” means the term during which the Services will be supplied, as specified in the Quote (or as otherwise agreed by us in writing).
“Turnaround Period” means:
(a) 10 hours between the end of the work day and the start of the next day; and
(b) When working 5 consecutive days, a minimum of 58 hours before start of work.
“Working Day” means a day (other than Saturday or Sunday) on which registered banks are open for business in Auckland, but excludes any day in the period from 24 December in any year to 5 January in the following year (both inclusive).
“you”/“your” means the Client, as described in the Quote.
6. Interpretation
6.1 Singular words include the plural and vice versa.
6.2 References to any party shall mean and include a reference to that party, its successor, executors or personal representatives (as the case may be), and transferees.
6.3 Any covenant on the Client not to do something shall also constitute an obligation not to suffer, permit, cause or assist any other person (including any personnel) to do that thing.
6.4 Any reference to any legislation, regulation, or code includes reference to any modification, substitute for, consolidation or re-enactment of it.
6.5 “Person” includes any natural person, company, corporation, partnership, firm, joint venture, association, trust, organisation, society, or other group or association of persons (whether incorporated or not), governmental or other regulatory bodies or authorities or semi-governmental body or agency or other entity, in each case whether or not having separate legal personality.
6.6 If there is more than one person named as the Client, the liability of the named Clients is joint and several.
6.7 Specifying anything in these terms and conditions after the words ‘include’, ‘including’ or ‘for example’ or similar expressions does not limit what else is included.
Schedule A – Dispute Resolution Procedure
1. Application of Dispute Resolution Procedure
Any dispute, controversy or claim arising out of or relating to this contract shall be determined by arbitration in Auckland, New Zealand in accordance with the following procedures and the Arbitration Act 1996 (New Zealand).
2. Initiation of Dispute Resolution
Any party may refer a dispute to arbitration by giving notice to the other party that it seeks a matter in dispute to be referred to arbitration. The notice shall set out the matter in dispute in sufficient detail to enable the other party to be adequately informed as to the nature of the dispute.
3. Procedure For Appointment of Arbitrator
Any dispute shall be heard by a single Arbitrator, which Arbitrator shall:
(a) be appointed by the parties, if they can agree on a single Arbitrator; or
(b) be appointed by the President for the time being of the New Zealand Law Society (“President”), if the parties cannot agree on a single Arbitrator.
Any Arbitrator appointed shall act as an expert and have skills in law and experience in commercial matters.
If a party objects to the appointment of a particular Arbitrator then that party may object within three Working Days of receiving notice of that Arbitrator's appointment. If the objection establishes that the proposed Arbitrator could not reasonably be expected to have the confidence of the objecting party then the President shall appoint another Arbitrator in consultation with the Parties to the dispute. The President's decision on any further appointment shall be final. Any determination of the Arbitrator will be binding and shall not be reviewable in any Court of law except to the extent that it may involve an error of law. The terms of appointment of the Arbitrator shall, if the parties fail to agree, be fixed by the President.
4. Decision of Arbitrator
The Arbitrator may in addition to the powers of an arbitrator under the Arbitration Act 1996, appoint an expert to investigate and report to the Arbitrator on any matter requiring decision.
The decision of the Arbitrator on any matter so referred to the Arbitrator shall be final and binding on the parties.
The arbitrator may, in the arbitrator’s unfettered discretion, determine and award the costs of the Dispute.
Unless the decision of the Arbitrator contains an award of costs the parties shall bear all the costs of the arbitration equally.
End of Schedule