Terms of Service

1. Introduction

  • These terms, along with our Policies, apply to the Services that we (Zeald Limited trading as “Outrun”) provide to you anytime, whether now or in the future.
  • Where there is any conflict between these terms of service and the provisions in the relevant Terms of Reference or any other agreement or documents relating to the Services, these terms shall prevail to the extent of the inconsistency, unless we have expressly stated in the other document that the terms in that document are to prevail.

2. Services

  • We will provide you with the Services described in the Terms of Reference and in accordance with these terms.
  • The Dedicated Staff provided as part of the Services will work exclusively for you during their agreed working hours unless otherwise agreed in writing.
  • We will:
    1. Provide the facilities, equipment and services for the Dedicated Staff as specified in the Terms of Reference (if any);
    2. Record attendance of the Dedicated Staff each working day and provide you with a log of attendance at regular intervals;
    3. Pay all wages, salaries and other employment benefits due to the Dedicated Staff;
    4. Fulfil all of our tax, insurance and superannuation obligations as the employer of the Dedicated Staff and otherwise comply with all employment laws and regulations applicable in the jurisdiction in which the Dedicated Staff reside and work; and
    5. Take such disciplinary action in relation to the Dedicated Staff as is lawful and we consider appropriate in our sole discretion.  We shall liaise with you, as appropriate, in relation to the behaviour, conduct and performance of the Dedicated Staff.
  • We will use reasonable endeavours to source and screen suitable potential Dedicated Staff in accordance with our usual processes and any written criteria and directions you have provided to us. The engagement of any particular Dedicated Staff is your decision and is entirely at your own risk. You agree that we shall not be responsible or liable to you or to any third-party claiming through you for any loss or damage suffered, claimed or arising from the performance (or lack thereof) of the Dedicated Staff, or your use or inability or failure to use the Dedicated Staff Solutions. 
  • As with your own employees and contractors, the Dedicated Staff may resign or otherwise cease their employment or engagement with us at any time.  If that happens, they may no longer be available for us to continue to provide the Services to you.  You agree that this is a normal incident of business and no compensation of any kind is payable by us in this event.
  • Should any Dedicated Staff resign or otherwise cease employment with us during the term of the Services, we will immediately notify you.  In this event, either you or we may terminate the relevant Terms of Reference for the Services by notice in writing to the other, such termination to be effective from the last day of employment of the relevant Dedicated Staff or such other date as we may agree.  If not so terminated, you may notify us in writing that you want us to source replacement personnel for you so we can continue to provide the Services to you.  The costs for sourcing a replacement for the Dedicated Staff will be as specified in the Terms of Reference or as we may otherwise agree with you in writing.  If we are unable to source a replacement who meets your criteria within a period of 30 days or any other agreed time, either of us may then terminate the relevant Terms of Reference for the Services immediately by notice in writing.
  • Should you require the Dedicated Staff to travel for training or any other lawful work-related purpose, you must obtain our prior written consent. We will withhold consent if the Dedicated Staff do not provide their informed consent to travel. We may also withhold our consent if we do not consider the proposed travel appropriate (for example, if there are any legal impediments to travel or health and safety concerns). If we give our consent for Dedicated Staff to travel, we may give that consent subject to any reasonable conditions that we, as the employer, deem necessary for the health, safety, comfort and security of the Dedicated Staff and in order to comply with all applicable laws. If travel proceeds, you agree to strictly comply with all such conditions and shall supervise the Dedicated Staff as if the Dedicated Staff were one of your own employees.
  • You may request changes to the Services described in a Terms of Reference. We will respond to any such requests within a reasonable time. Any agreed Variations to a Terms of Reference will be documented in writing. Following any such Variation, we shall each continue to perform our respective obligations under the terms of Reference as so varied.
  • We may decline an application for the Services (and/or any request for further Services) at our discretion and we do not have to disclose the reasons for our decision.

3. Your Responsibilities

  • You will pay the Charges for the Services, without set off or deduction and regardless of the performance of, or your need for, the Dedicated Staff;
  • Unless you have elected otherwise in the relevant Terms of Reference, you are responsible for:
    1. providing the instructions, training and direction as may be necessary to ensure the Dedicated Staff can perform the lawful tasks and duties you allocate to them; and
    2. promptly providing any further direction, information or feedback that may be reasonably requested by the Dedicated Staff.
  • You may communicate with the Dedicated Staff on work e-mail accounts, messaging platforms and voice services that either you or we have provided for their use in conjunction with the Services at any time but. unless we have otherwise agreed in writing, you will not:
    1. require any reply or response from the Dedicated Staff outside of their normal working hours; or
    2. contact or attempt to communicate with the Dedicated Staff on any personal phone number, account or messaging service used the Dedicated Staff

    Notwithstanding the above, we may endeavour to facilitate your communication with the Dedicated Staff outside of their normal working hours and/or on personal numbers or accounts where there is a legitimate need to do so (for example, in the event of a genuine emergency that relates to the Dedicated Staff) and where we are able to facilitate such communication for you.

  • You will:
    1. Utilise the Dedicated Staff only for proper and lawful purposes, for your own business and as otherwise contemplated in the Terms of Reference;
    2. Treat, and ensure your employees and Agents treat, the Dedicated Staff at all times with courtesy and respect and do not subject or expose the Dedicated Staff to any form of bullying, harassment or unlawful discrimination;
    3. Provide such training and professional development to the Dedicated Staff as you deem necessary or appropriate at your absolute discretion and cost (including any costs of travel and accommodation);
    4. Make the Dedicated Staff aware of and ensure their compliance with any codes, policies and regulations (including any industry codes, standards or regulations) that apply to their work for you;
    5. Take all such reasonable precautions and measures, as you do with your own employees, to safeguard your intellectual property and confidential information from misuse or disclosure by the Dedicated Staff;
    6. Promptly notify us of any actual or suspected misconduct by the Dedicated Staff and any behavioural concerns you have regarding the Dedicated Staff and provide reasonable assistance to us in investigating such activities; and
    7. Not, without our prior written agreement, subcontract, assign or make the Dedicated Staff available on a secondment or similar arrangement for the use or benefit of anyone outside of your own business, nor you will attempt to do any of those things.
  • It is also your responsibility to:
    1. promptly provide all the information, assistance and approvals that we may reasonably require so that we can fulfil our obligations to you under the Terms of Reference in a timely and efficient manner.  In particular, you must respond to any request from us within the time frame stipulated in the request or, if no time frame is specified, within seven (7) days; and
    2. keep strictly confidential any password and log-on we give you for access to Our Portal, the administration functions relating to the Services or any of our other systems or services. You will notify us immediately if you become aware or have grounds to believe any such log-on or password has been compromised or misused.
  • You will not use the Services:
    1. in any way that is likely to mislead or deceive others or cause damage to our reputation or the reputation of any third-party;
    2. in a manner that causes or may cause us, in the course of providing the Services or otherwise fulfilling our obligations under the Terms of Reference, to infringe upon any other person's Intellectual Property and you agree to indemnify us from and against any action taken by a third party against us in respect of any such infringement; and
    3. for any offensive, harmful, upsetting, unlawful, or otherwise objectionable purpose. This includes complying with the Electronic Messages Act 2007, the Harmful Digital Communications Act 2015 and similar legislation in any jurisdiction that applies to you or to us.
  • In consideration of our agreement to provide you the Services, you agree that during the term of the Terms of Reference and for a period of 12 months following the termination of a Terms of Reference (for whatever reason):
    1. you will not, whether directly or indirectly and in any capacity whatsoever, induce, or attempt to induce any of our  employees or contractors (including the Dedicated Staff) to terminate their employment or contractual relationship with us;
    2. other than as permitted in clause 3.viii, you will not engage or employ, either directly or indirectly any person (including the Dedicated Staff) who is employed or contracted by us or any related company of ours in relation to the supply of the Services;
    3. you will advise us if a person (including the Dedicated Staff) who is employed or contracted by us or any related company seeks to be employed or contracted by you; and
    4. you agree that the restraints imposed as part of this clause are reasonable and go no further than is reasonably necessary to protect our legitimate business interests, including in relation to Confidential Information and Intellectual Property.
  • In the event that you wish to directly engage (whether as an employee, independent contractor or otherwise) any Dedicated Staff who have worked for you at any time during the previous twelve-months, we may permit you to do so (in our sole and absolute discretion):
    1. Subject to the relevant Dedicated Staff providing their informed consent to such an arrangement; and
    2. On your payment to us of a break fee equal to the total of three (3) months of: (1) our management fee; and (2) the remuneration payable (or that was payable) for the Dedicated Staff personnel whom you wish to engage directly.

4. Charges and Payment

  • The Charges for the Services as at the start date of those Services are as detailed in the Terms of Reference. The Charges are subject to clause 4.ii and changes as a consequence of any agreed Variations.
  • We will review the Charges from time to time. We may change the Charges:
    • With your consent. You may give such consent, for example, if you agree that the Dedicated Staff should receive an increase in their remuneration;
    • By giving you no less than three (3) months’ notice of any proposed change provided that, if the affected Services are subject to a Minimum Term with more than 3 months remaining, such change shall not apply until the end of that Minimum Term; or
    • In the event of any increase in the cost to us of the Dedicated Staff as a result any government order, legislation, regulation or other factor outside of our reasonable control. In this event, we will notify you as soon as possible of the cost increase and any revision to the Charges that may result.

    You agree to pay the Charges as so revised unless and until the Services are terminated in accordance with these terms.

  • All Charges are expressed in the currency specified in the Terms of Reference and payment must be made in that currency unless expressly stated otherwise in the Terms of Reference.  All Charges are exclusive of all taxes and duties, such as Goods and Services Tax (GST) or Value Added Tax (VAT), and such taxes and duties (if any) shall be paid in the same currency specified in the Terms of Reference.
  • We will invoice you monthly:
    • in advance for the Dedicated Staff remuneration, our management fees and any other standard Services specified in the Terms of Reference; and
    • in arrears for any additional Services provided during that month.

    Any credits or refunds applicable to the Charges will be credited monthly in arrears and applied to the next invoice.5

  • Unless otherwise specified, you agree to pay all invoices within 7 days of the invoice date (time being strictly of the essence) utilising one of the payment options we provide in your jurisdiction. You shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute except as permitted in clause 4.vi.
  • If you, acting reasonably and in good faith, consider that an invoice contains an error, you must notify us as soon as possible (and, in any event, within the period specified in clause 8.v) providing details of the error. In that event, the following shall apply:
    • if you have provided us with notice before the due date of the relevant invoice, you may withhold payment of any disputed
      amount. You must still pay any undisputed amount by the due date;
    • We will promptly investigate the matter and inform you as to whether we agree that the invoice contains an error. If we agree that we have made a mistake, we will promptly correct the relevant invoice.
    • If we find there is no mistake or if a reduced amount is still payable, you will pay the outstanding amount by the due date of the invoice. If the due date of the invoice has already passed, you will immediately pay any outstanding amount and we may charge you interest at the rate provided in clause 4.vii.e from the date we give notice under the preceding sub-paragraph (b) to the date of actual payment of the overdue amount;
    • If we agree there is an invoice error and we are required to make any refund to you, we may at our election, repay that sum to you or apply that sum as a credit to your next invoice or to any other outstanding invoice we have issued to you.
    • If you do not agree with the results of our investigation under sub-paragraph (b), you must advise us in writing within 7 days of receiving our response, time being of the essence (“invoice dispute”). If you provide such notice, either of us may then refer the invoice dispute to the dispute resolution procedure in clause 13.
  • If you do not pay the Charges on time we may, at our option do any or all of the following:
    • suspend or restrict your use of the Services;
    • terminate the relevant Terms of Reference in accordance with clause 10;
    • refer your account to our debt collection agency;
    • charge you all collection costs incurred by us, and you agree to indemnify us from and against all costs and  disbursements incurred by us in recovering the unpaid Charges (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, our collection agency costs, and bank dishonour fees);
    • charge you default interest from the date when payment became due, until the actual date of payment of all amounts owing (including default interest), at a rate of two percent (2%) per calendar month (which shall at our sole discretion compound monthly at such a rate) after as well as before any judgment; and
    • set-off any amounts due from you against any moneys that we may owe to you or apply any credit or moneys that we hold for you.

5. Intellectual Property

  • We and our suppliers own:
    • all existing Intellectual Property in the Portal and Services;
    • all modifications, developments or enhancements of our existing Intellectual Property developed or created by us, our agents, employees and contractors (including the Dedicated Staff) in connection with the Services; and
    • all other new Intellectual Property (if any) developed or created by us, our agents, employees and contractors (including the Dedicated Staff) in connection with the Services, except only for any new Intellectual Property created by the  Dedicated Staff as provided in clause 5.ii.b.
    (collectively, “Our IP”).
  • Provided you meet your payment obligations for the Services, you are granted:
    • a personal, non-exclusive, non-transferable license to use Our IP for the term of and in the manner anticipated in the Terms of Reference. We warrant that we have the right to grant you a licence to use Our IP in the manner anticipated in the Terms of Reference. However, unless we have expressly agreed otherwise in writing, no license is given for you to modify, develop or improve Our IP, to create any derivate works based on Our IP or to use Our IP to develop any products or software that will be sold by you or anyone else; and
    • all Intellectual Property rights (including copyright) in all new Intellectual Property (if any) created by the Dedicated Staff in the course of the work they undertake for you as part of the Services and which new Intellectual Property is not otherwise Our IP.

6. Confidential Information

  • Each party will keep all information about the Terms of Reference, the Services and other information that is confidential to the other party (”Confidential Information”) confidential and will not use or disclose this information to a third party other than:
    • with the prior written consent of the other party;
    • for the purposes of fulfilling our obligations to each other under the Terms of Reference and these terms;
    • as may be otherwise permitted in these terms; and
    • as required by law and then only to the minimum extent required.
  • Confidential Information does not include information that is generally known and available without a party having breached its obligations under this clause; or is, or has been, independently and lawfully acquired or developed without the benefit or use of the other party's Confidential Information.
  • We will use reasonable endeavours to ensure that at the outset of their engagement with us, the Dedicated Staff are made aware that they are obliged to retain and keep confidential your Confidential Information and to use that information strictly and only in connection with their work for you as part of the Services.
  • Provided we have discharged our obligations in clause 6.iii, we will not otherwise have any liability whatsoever to you for any misuse or disclosure of your Confidential Information by the Dedicated Staff. Each party shall otherwise be responsible for ensuring that its employees, subcontractors, professional advisors and Agents abide by the obligations of confidentiality in clause 6.i.

7. Warranties

  • We warrant that we will provide the Services in accordance with all applicable laws and with reasonable diligence, care and skill.
  • Except as expressly stated in these terms, all other warranties and conditions, express or implied, are excluded to the maximum extent permitted by law.
  • You agree that that the Services are purchased by you for the purpose of your business or undertaking and:
    • the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply; and
    • it is fair and reasonable that you and we are bound by this provision.

8. Liability

  • You agree that we should not be exposed to your business and operational risks and so you agree that:
    • We will not be liable for the results you achieve (or fail to achieve) from your use of the Services, including any failure to achieve expected savings, performance targets or profits; and
    • If there is a Claim by any third party or a dispute between you and any third party relating to your use of the Services or the work any Dedicated Staff undertake for you as part of the Services, you acknowledge that it is your responsibility to resolve such Claim or dispute with the third party and you agree to indemnify us from and against all claims, proceedings or actions by such third party against us including costs (legal or otherwise) that we may incur in defending such Claims, proceedings or actions on a full indemnity basis.
  • To the maximum extent permitted by law, we will not be liable to you, or any third party, in any way whatsoever for any:
    • Misuse, loss, damage to or corruption of your information or data from any cause, including as a consequence of the action or inaction of any Dedicated Staff; or
    • breach of security except to the extent that breach is attributable to our own gross negligence.
  • Neither you nor we shall be liable to the other party for any:
    • loss of anticipated profits, savings or revenue; or
    • incidental, indirect, special or consequential loss or damage, and

    the maximum aggregate liability of a party to the other arising out of any claim for loss and/or damages (for any cause whatsoever) will under no circumstances exceed an amount equal to the lesser of $30,000 or the total Charges paid by you under the relevant Terms of Reference in the three (3) month period immediately preceding the event giving rise to liability. Nothing in this clause 8.iii shall limit a party’s liability in relation to death or injury to persons or deliberate damage to tangible property, your liability to pay the Charges or any other amounts payable by you under these terms or your liability under the indemnity in clause 8.i.b.

  • The limitations and exclusions of liability in this clause 8 shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
  • You and we each agree that it is beneficial for any issues, disputes or Claims that may arise between us to be raised and dealt with promptly.  It is therefore agreed that:
    • a party with a Claim against the other (“Claimant”) will provide written notice of that Claim to the other party as soon as reasonably practicable upon becoming aware of the Claim and in any event:
      • a Claim relating to defective Services must be notified no later than 90 days (time being of the essence) after the delivery of those Services; and
      • any other Claim must be notified no later than 90 days (time being of the essence) after date on which the Claimant first became aware or ought reasonably to have been aware of the Claim, whichever is the earlier.
    • a party shall have no liability to the other in respect of a Claim not notified by the Claimant in accordance with clause 8.v.a; and
    • in any event, no arbitration, legal proceedings or other action, regardless of form, arising out of a Claim may be brought by either party more than 12 months after the date of the act or omission giving rise to the Claim (or, if more than one, the last of such acts or omissions).

9. Suspension of Services

  • We may suspend the provision of the Services to you:
    • with at least seven days’ prior notice if you do not meet all of your responsibilities under the relevant Terms of Reference or these terms, and at the end of that seven-day notice period you still have not fulfilled your required responsibilities;
    • immediately, if we reasonably believe you are using the Services for any unlawful purpose;
    • immediately in an emergency, where required by law or whenever we or any other appropriate person considers that it is necessary or reasonable to protect persons, systems or other property;
    • if we are subject to any Force Majeure Event; or
    • The Dedicated Staff are subject to any Force Majeure Event that exceeds or that we reasonably expect to exceed fourteen days.
  • Except for any suspension of the Services under clauses 9.i.c - 9.i.e, the Charges will continue to apply where we have suspended the Services under clause 9.i. You agree that we shall have no liability to you in respect of any loss (including loss of profit), cost or damage suffered or incurred by you as a result of any suspension of the Services.
  • Where we have suspended the Services under clauses 9.i.c. or 9.1.d, we will use our reasonable endeavours to restore the Services as soon as practical.

10. Termination

  • Termination for Convenience
    In addition to the rights of termination available in the circumstances outlined in clause 2.vi, either of us may terminate the Services with no less than three (3) months’ written notice to the other provided that, where the Services are subject to any Minimum Term, any such notice given by:
    • Us, will only take effect at the end of that Minimum Term; and
    • You, will require payment of any applicable Early Termination Charges in accordance with clause 10.v.c.
  • Termination for breach
    You or we may terminate the Terms of Reference at any time if the other
    party:
    • Is placed into voluntary administration, receivership or liquidation or is subject to any other analogous form of insolvency administration or, being a natural person, becomes a bankrupt or dies;
    • Commits a material breach of the Agreement that is not reasonably capable of being remedied; 
    • Commits a breach of the Agreement and fails to remedy that breach within 20 days of being given written notice of such breach (which in the case of any breach by us, must be e-mailed to complaints@outrun.co.nz).
  • Termination by us
    In addition to the rights of termination in clause 10.ii, we may terminate a Terms of Reference with immediate effect if you:
    • In any way abuse, bully, harass or threaten (including, but not limited to, threats of abuse or retribution or using any form of cyber-bullying) the Dedicated Staff or any of our other employees, contractors, agents, directors or officers;
    • In our reasonable opinion are using or have used the Services for any illegal, immoral or objectionable purpose.
  • Termination by you
    You may terminate a Terms of Reference where we have suspended the Services under any of clauses 9.i.c - 9.i.e for a continuous period of more than 60 days.
  • Consequences of termination
    Upon termination:
    • we will immediately cease providing the Services, or, if the Services have already been suspended, we will not provide any further Services;
    • we will invoice you, and you will immediately pay without set-off or deduction the amount invoiced on receipt of the invoice, for any Charges incurred but not yet invoiced as at the date of termination;
    • if termination is:
      • for convenience by you under clause 9.i (which, to avoid doubt, does not include a termination by you under clause 2.vi or clause 9.iv); or
      • by us under clause 10.ii. or 10.iii,

      in each case during any applicable Minimum Term, you must pay the Early Termination Charges as a genuine agreed pre-estimate of the costs and losses sustained by us as result of that termination;

    • you will not be entitled to a refund of any of the monies already paid by you for the relevant Services for any period after the date of termination;
    • we may continue (in our sole and absolute discretion) to employ, contract, or in any other way engage with the Dedicated Staff including redeploying such Dedicated Staff for the delivery of services to another client; and
    • we will be regarded as wholly discharged from any further obligations or performance for the Services with effect from and on the date of termination.
  • Effect of Termination
    Termination or cancellation of a Terms of Reference shall not relieve either party from any right, liability, or claim that has accrued on or before the date of termination or cancellation. Terminate shall not affect the operation of any clause that is intended to survive termination including, without limitation, clauses 5, 6, 7, 8, 10, 13 and 14 of these terms will survive termination or cancellation of a Terms of Reference.

11. Marketing

  • We may include a generic reference to our customers by type, size, general industry, level of cost savings achieved in our marketing materials or on any website we operate. We will not disclose any names, descriptions or other details that identify you as a customer of the Services without your prior written consent.
  • You agree that we may send you e-mails or other types of communication with articles and information about our organisation and products and services from time to time that we think may be of interest to you.  You may elect not to receive such communications at any time by following the unsubscribe process included with the communication or by contacting our support team on support@outrun.co.nz

12. Variation of Terms

  • We may amend or replace these terms of service from time to time. We will post the amended or replacement terms (“Amended Terms”) on our website and we will communicate these changes to you via email or by notifying you via Our Portal. If you object to the Amended Terms, you must notify us by emailing support@outrun.co.nz.
  • You will be taken to have accepted the Amended Terms and the Amended Terms will apply to the Services on the first to occur of:
    • you making any new request for us to provide Services to you; or
    • where any Minimum Term applies to Services, at the end of that Minimum Term or the date 3 months from the date we give notice, whichever is the later.
  • If you are in any doubt as to the current terms of trade that apply to the Services, please visit our website www.outrun.co.nz or contact our support team on support@outrun.co.nz.

13. Disputes

  • Principles
    The following principles apply to any dispute or difference arising out of or in connection with these terms, a Terms or Reference or the Services (“dispute”):
    • each party shall use all reasonable efforts in good faith:
      • to resolve any dispute; and
      • subject to the express rights of a party in these terms, to minimise the impact of any dispute.
    • the dispute shall be confidential between the parties and their respective legal advisors, except as otherwise provided in this clause or to the extent a dispute is required to be disclosed by court order or any enactment or rule of law.
  • Exclusive Process
    Any dispute shall be raised and resolved in accordance with this clause. No party may commence or maintain any action or proceedings in any court, tribunal or otherwise regarding a dispute without:
    • First giving a notice of dispute under clause 13.iii; and
    • complying with and completing the dispute resolution process under this clause, except where that party is seeking urgent interlocutory relief, including in relation to the protection of confidential information or intellectual property.
  • Notice of dispute
    A party must, as soon as reasonably practicable, give the other party notice (“Dispute Notice”) of any dispute.
  • Internal dispute resolution
    Following issue of a Dispute Notice, the parties will consult in good faith for a minimum of twenty-one days to see if they can resolve the matter giving rise to the dispute themselves, including at least one meeting (whether in person or via audio-visual means of communication), between the parties’ nominated representatives within fourteen days of issue of the Dispute Notice.
  • Optional Mediation
    If the parties fail to resolve the dispute in accordance with clause 13.iv within 21 days of issue of the Dispute Notice, the parties may agree to a mediation of the dispute (which mediation shall be conducted in accordance with the mediation rules of the New Zealand Dispute Resolution Centre).
  • Arbitration
    If there is no agreement to mediate, either party may thereafter (but subject always to clause 8.v.) give notice to the other party requiring the dispute to be referred to and finally resolved by arbitration in accordance with the arbitration rules of the New Zealand Dispute Resolution Centre. The parties shall:
    • Promptly each pay one-half of the preliminary costs of the arbitration as set out in the arbitration rules of the New Zealand
      Dispute Resolution Centre; and 
    • in consultation with the New Zealand Dispute Resolution Centre, endeavour to agree on the arbitrator to be appointed within ten days of the referral to arbitration but acknowledge that if agreement cannot be reached, the decision on the appointment of the arbitrator shall be made by the New Zealand Dispute Resolution Centre.

14. General

  • The Terms of Reference and these terms comprise the entire agreement between you and us in respect of the Services and, unless expressly stated in the Terms of Reference, all prior agreements, warranties, representations, written, verbal or otherwise, are excluded and superseded.  By accepting the Terms of Reference, you also confirm and acknowledge that you have not been induced to purchase the Services by any representation whether verbal, written or otherwise, made by or on behalf of us which is not expressly set out in the Terms of Reference.
  • You agree that we are free to offer and provide services, that are the same or similar to the Services provided to you under a Terms of Reference, to other persons and companies.
  • The failure by us to enforce any provision of these terms shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.  If any provision of these terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
  • If any of your contact details change, you agree to promptly provide us with your new contact details.  We will send you notices and other communications to the last known contact details you have given to us.
  • You and we (each a “representing party”) warrant to the other that the representing party:
    • has the power to enter into each Terms of Reference forming part of this agreement and has obtained all necessary authorisation to allow it do so; and
    • is not insolvent and that this agreement creates binding and valid legal obligations on it.
  • You may not assign any rights or obligations under these terms without our prior written consent. We may assign any rights under these terms without obtaining your prior approval. We may also sub-contract any of our obligations under these terms, but in so doing, will not be relieved of any liability to you under these terms.
  • Nothing in these terms shall be construed as creating a relationship in the nature of principal and agent, partnership, joint venture or employer and employee between:
    • you and us or any of our personnel or Agents; or
    • you and the Dedicated Staff.
  • If a court of competent jurisdiction determines that any provision of these terms is illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect; and
  • These terms and any contract to which they apply (including, but not limited to, the Terms of Reference) shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand.

15. Definitions and Interpretation

“Agents” means either your or our (as the context dictates) employees, contractors and/or anyone else authorised to act on your or our behalf but in each case, does not include the Dedicated Staff.
  
“Amended Terms” has the meaning given to it in clause 12. “Charges” means the charges payable by you to us for the Services under a Terms of Reference and shall include any amount payable in respect of any Variations. The Charges include the Dedicated Staff salary and other statutory entitlements, our management fees and fees for any other agreed additional services, facilities, equipment or support we provide in connection with the Services.
 
“Claim” includes any loss, damage or other cause of action arising under or in connection with the Services or a Terms of Reference, whether based on an action or claim in contract, equity, negligence, tort or otherwise. 

“Confidential Information” has the meaning given to it in clause 6.i.
 
“Dedicated Staff” means any part-time or full-time personnel of ours who are made available by us to you as part of the Services.

“Early Termination” means the termination of Services by you under clause 10.i. or by us under clause 10.ii. or 10.iii. in each case, during any Minimum Term applicable to those Services.
   
“Early Termination Charges” means the charges to be paid by you as a genuine agreed pre-estimate of the costs and losses we will likely incur in dealing with an Early Termination, and shall be equal to the monthly service fee, labour recovery charge and additional costs payable by you under the relevant Terms of Reference for those Services for a period of three months or until the end of the Minimum Term, whichever is the shorter. 
  
“Force Majeure Event” means an event that is beyond our reasonable control but which excludes lack of funds for any reason and in any event that we could have avoided by taking reasonable steps or reasonable care. The word “Includes” in any form is not a word of limitation. 

“Intellectual Property” means all intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation of 1967 and as subsequently amended.

“Minimum Term” means any agreed minimum term that may apply to certain Services as set out in the Terms of Reference.

“Order Form” means our order form (in whatever form that may take) signed or otherwise authorised (as applicable) by you or on your behalf, which specifies the Services you require from us and which shall include any Services ordered or authorised by you via Our Portal.
  
“Our IP” has the meaning given to it in clause 5.i. "Our Portal" means the web-based interface or application provided by us that may be used by you and our other clients to order Services, access our management tools, pay our Charges or otherwise interact with us.

“Policies” means our privacy policy (which may be viewed at www.outrun.co.nz/privacy) and our modern slavery policy (which may be
viewed at www.outrun.co.nz/modern-slavery-policy).

“Proposal” means the proposal accepted by you or on your behalf, in respect of the Services.
  
“Services” means the services we provide to you in relation to the sourcing, resourcing and provision of Dedicated Staff as further described in clause 2.

“Terms of Reference” includes any Proposal, Order Form and Variations.

“Variations” means any agreed change made to the Services in accordance with clause 2.viii.
 
“we” or “us” means Zeald Limited trading as ‘Outrun’ and “our” has a corresponding meaning.

“you” means the client identified in the Terms of Reference and “your” has a corresponding meaning.