TANDEM NZ OUTSOURCING TERMS OF SERVICE
This is a legal agreement between you and TANDEM NZ. This Agreement replaces any prior written or oral agreement between the parties. By making at least one payment to TANDEM NZ for our services, you agree to the following Terms and Conditions of Service. If you do not wish to be bound by the terms and conditions of the Agreement, you MUST NOT submit an order to, agree to or allow any service to be provided by, or otherwise make any purchase from, TANDEM NZ.
1.0 COMMENCEMENT OF WORK
- We reserve the right to decide when to start the Service, subject to the following conditions.
- The refundable deposit (if any) and first month’s fee will be charged at the time you place your order.
- Once the payment has been made work will commence on securing your resource requirements and gathering your work requirements in detail after payment has been received.
- We can commence service in accordance with the above either with or without your explicit agreement to the start date and time.
2.0 TERM OF SERVICE
- The terms of this agreement will be outlined and agreed between both parties. At the completion of the term, any price changes will be communicated and agreed before the continuation of the service.
3.0 SERVICE DEFINITIONS
- You acknowledge that certain limits to the scope of our service apply to all our services and you agree that we shall not under any circumstances be obliged to carry out work of any type that is not explicitly included in your Service Plan.
4.0 CONFIDENTIAL INFORMATION
- Each party will maintain all Confidential Information of the other party in strict confidence and will not at any time or for any reason disclose any Confidential Information of the other to any third party without the disclosing party’s prior written consent.
- Neither party will use any Confidential Information of the other for any purpose whatsoever except in performing its duties and exercising its rights under this Agreement.
- Neither party will disclose any Confidential Information of the other to any of its agents or employees who do not participate directly in the performance of its duties or exercise of its rights under this Agreement, and each party will advise its employees who are permitted access to any Confidential Information of the other party, of the restrictions on disclosure and use set forth in this Agreement.
- Notwithstanding the foregoing, either party may disclose the Confidential Information of the other if it believes in good faith that any applicable law, rule, or regulation requires the disclosure, provided that it makes a reasonable effort to give the disclosing party as much advanced notice as may be practicable.
- On termination or expiration of this Agreement, each party will return or destroy all Confidential Information obtained from the other party and copies thereof.
- Either party may use for any purpose without obligation to the other party, information (other than Confidential Information) in non-tangible form, which may be recalled by persons who have had access to the Confidential Information, and which results from work with the Confidential Information.
- You agree that, if you dispute any payment(s) made to us, then we will have the right to disclose any information we see fit to any financial service provider(s) involved in processing each disputed transaction, and that the Confidential Information provisions in this Agreement do not apply to our communications with those entities.
- Nothing in this Clause will prohibit or restrict our right to provide the same or similar products or services furnished hereunder to other parties. You acknowledge and agree that the restrictions on Confidential Information contained in this Agreement shall not apply to the general knowledge, skills and experience gained by us or our employees while engaged by you.
5.0 NON SOLICITATION OF EMPLOYEES OR CONTRACTORS
- Except for the Service itself, You will not directly or indirectly, during this Agreement and for a period of two years after its expiry or termination solicit, engage, employ, contract or otherwise work in any manner with any person who is or was employed or engaged by us (including our subsidiaries). This obligation applies not only to you but also to each of your Directors and principals (where existent). In the event that You or one or more of Your Directors or principals breaches this section, then You agree to pay us a fee of NZ$50,000 for each breach (that is, once for each employee) plus any legal costs incurred by us in recovering such fees from you.
- You acknowledge that the two-year period mentioned above is no greater than is reasonably required to protect the goodwill in the business.
6.0 VOICE OVER IP (VOIP) TECHNOLOGY
- You acknowledge that, due to the nature of VOIP technology, line quality cannot be guaranteed and that outages and line quality degradation may occur from time to time. You acknowledge and agree that fees will not be refunded, nor work hours repeated, due to such outages.
7.0 NO THIRD-PARTY SUPPORT
- This section applies if your Service Plan requires us to provide support to your customers.
- Unless we explicitly agree otherwise in writing, we will only provide support to your Direct Customers and not to customers of any other company/entity. For example, if you have multiple companies then you would need to purchase a separate Support Plan for each company.
- We reserve the sole right to decide which customers are Direct Customers and which customers are not.
8.0 TOOLS PROVIDED BY TANDEM
- As part of your contract Tandem NZ provides your staff with the following tools to undertake their tasks: Desk space, Seat, Windows Desktop PC, 2x HD Screens, Webcam, Password encryption locker, Restricted secure office access, Staff perks (Free tea, coffee etc), VOIP tool, Instant Messaging tools (for communication)
- Part of your contract cost is covering overheads that Tandem NZ provides your employees and yourself: PC repair and maintenance, Power, Office items, High-speed internet connection, Print options, HR management, Project Management tool access
10.0 EMPLOYEE WORK DAY
- Your employee has been charged to you for 40 hours per week. However, you will actually receive 42.5 hours in the work week (this is an additional 15 days productivity over a 12-month contract for FREE).
11.0 MEAL BREAKS
- All staff are entitled to: An average of up to 90 minutes of meal breaks per 10-hour shift; Time spent on meal breaks in accordance with the above entitlements forms part of your paid support period and you will not be reimbursed or refunded in any way for time spent on meal breaks as per the above entitlements.
12.0 STAFF ABSENCES
- The following applies:
- Staff may be absent from work due to leave, sickness, public holidays and other extenuating circumstances;
- All staff are entitled to 18 days Annual leave per year, 15 days public holiday and 5 days of sick leave after 3 months continuous employment. Leave taken by staff on top of the above will be agreed and reimbursed to you as makeup days to be used.
- Annual leave accrued but not used during the course of your contract term will be additionally charged to you at the end of the contract.
- Public holidays are as per India employment law and as outlined in Kannada state. We have pre-selected the following dates for your staff so you have clarity on availability.
If staff are required on an Indian public holiday or non work day this can be negotiated with staff but will incur additional costs at our standard Time and Materials charge and an extra day charge.
- Employee Termination – If for any reason during the term of your contract the employee’s employment is terminated due to resignation or breaches in company policy you will be notified and you contracted payments will be placed on hold until a suitable replacement employee is found.
13.0 SUPERVISION LEVEL
For all other Service Plans, we provide basic supervision only, meaning that we will ensure that your assigned staff:
- Attend work punctually and stay for the required hours;
- Apply themselves effectively while at work;
- Take only the allowed duration of meal breaks;
- Comply with our administrative procedures;
- And other HR related activities.
- It is your responsibility to make good use of staff time by assigning sufficient, clearly-defined, appropriate work – charges still apply for the time that your assigned staff are sitting idle.
- You are responsible for backing up your servers and data. You are responsible for backing up and storing any works we undertake for you, including but not limited to website designs and computer programs unless explicitly agreed with us. You acknowledge that we do not have any obligation to keep a copy of work we undertake for you.
15.0 OWNERSHIP OF WORK PRODUCED
- This section applies to any computer program(s), computer code, website design(s) or graphic design(s) we produce for you in relation to your Service Plan if and only if the Service has been paid for in full. Such works are your property subject to the following restrictions:
- Licensing restrictions apply to most images used in website and graphic design work. You must not re-use the images for any other purpose and must not redistribute the images in any way, shape, or form, nor use the images in website templates for multiple re-sale, unless you have our express written permission to do so. Such permission can only be obtained by contacting us through our contact form on our website and cannot be given by your assigned staff;
- Some common, generic computer program functions and sub-procedures may be re-used in projects that we undertake for other clients. Examples of generic functions include functions written to trim whitespace from a text string or to validate an email address. You agree that we have the right to re-use generic code in this way, free of cost.
16.0 HARDWARE AND SOFTWARE
- Tandem NZ will provide the basic hardware for your staff to complete their required tasks. You are responsible for all costs associated with the hardware and software you use to provide your products and services beyond a standard Windows 10 PC with two monitors, webcam and headset which we provide at no additional cost. Upgraded performance machines you will be responsible for the costs of.
17.0 SERVER OUTAGES
- You agree and acknowledge that, if any server which we are providing support for experiences an outage, responsibility for minimizing the length of the outage rests with you, whether or not you are aware of the outage. Our staff may assist in that process (if such assistance is within the scope of the service we are providing to you) but you agree that we will not be liable for any outage period in whole or in part. You further agree that you will take reasonable steps to ensure that you are notified promptly of any outages via your own monitoring system (in addition to Server Monitor) or a third-party monitoring system. We recommend that you always contact your assigned technicians when an outage occurs.
18.0 ACCEPTABLE CONTENT
- We will not perform any task that will or is likely to require any employee(s) of ours to view or work with content which is sexually explicit, hateful, obscene, offensive, illegal, threatening, racist or contains depictions of nudity.
19.0 REFUND POLICY
- Other than as described in the previous paragraph, all payments are non-refundable. If however, we decide that exceptional circumstances apply then we will provide a refund, or partial refund, at our discretion. Refunds will not be issued for days on which staff were assigned and on duty for you.
20.0 BILLING CYCLE AND PAYMENTS
- For monthly service plans, our billing cycle is monthly in advance. Your initial payment is due at the time you open your account.
- All prices advertised on our website are in NZ dollars.
21.0 OVERDUE PAYMENTS
- If your payment is overdue we will discontinue the Service until payment of all applicable fees is made via one of our supported payment methods.
- Unpaid invoices will incur interest at the rate of the daily standard rate bank charge until paid in full.
22.0 ALLOCATION OF PAYMENTS
- For each payment you make, we have the sole right to decide which due amount(s) to apply the payment to.
23.0 CANCELLATION OF SERVICE
- You may cancel the Agreement at any time by providing us with the specified notice period and written authorisation to cease the Service.
- No service will be provided after your Service Plan has been cancelled, including but not limited to bug fixes, website maintenance and data/file retrieval.
- Ongoing bug fixes, website maintenance and data/file retrieval services after cancellation of your outsourcing service will be charged at our standard time and materials rate.
24.0 RIGHT TO OUTSOURCE
- At our sole discretion, we may outsource the Service or the performance of any work, or part thereof, relating to the Services to any company we choose.
- If we outsource any part of the Services or the performance of any part of the work comprising the Services, the terms and conditions of this Agreement will apply mutatis mutandis to the company to whom the work or Services have been outsourced. For clarity, this Agreement between you and us will continue on foot and we will hold the rights and obligations of this Agreement on trust.
25.0 MODIFICATIONS TO SERVICE
- We reserve the right to update these Terms and Conditions from time to time. Any updates to these Terms and Conditions will apply to the Service from the time that this Agreement is updated on our website and an email is sent to the email address we have on record for you to advise you that our Terms and Conditions of Service have been modified (whether or not that message is properly received and read by you).
- Any modifications to the service provided will be advised and agreed with you.
26.0 INTELLECTUAL PROPERTY
- You agree to indemnify, hold harmless and defend at your own expense us from and against any and all Claims for infringement of copyright, patents, trademarks, industrial designs or other intellectual property rights issued under the laws of any country where:
- the copyright, patents, trademarks, industrial designs or other intellectual property were provided by you; or
- you represented, expressly or impliedly, that the copyright, patents, trademarks, industrial designs or other intellectual property were your intellectual property; or
- you had asked us to download or otherwise copy or access or use the copyright, patents, trademarks, industrial designs or other intellectual property.
- You further agree not to provide us with any item nor ask us to download/access/copy/use any item, including but not limited to images, software, computer code and written material, unless you have the legal right to use those items for the purpose our work relates to.
- We undertake to give you prompt notice of any Claim described above that is made against us or any of our subsidiaries, dealers or customers and you will forthwith defend any such Claims and make settlements thereof at your own expense.
- You acknowledge that any and all of the copyright, patents, trademarks, industrial designs or other intellectual property rights used or subsisting in or in connection with our business, marketing and/or support material relating to our business and all documentation and manuals relating thereto are and will remain our property and you will not, during or at any time after the expiry or termination of this Agreement, in any way question or dispute the ownership by us thereof.
- You will not, during or after the expiry or termination of this Agreement, without the prior written consent of us, use or adopt any name, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trademark, trade name, trading style or commercial designation used by us.
- If any part of this Agreement is deemed to be unenforceable or otherwise invalid then that will not affect the validity nor enforceability of any other parts of this agreement.
28.0 FORCE MAJEURE
- Neither party will be liable to the other party in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of Force Majeure.
- Failure or neglect by us to enforce, at any time, any of the provisions of this Agreement will not be construed or deemed to be a waiver of our rights hereunder nor in any way affect the validity of the whole or any part of this Agreement or prejudice our rights to take subsequent action.
- You may not assign, attempt to assign nor otherwise transfer any right or obligation arising out of this Agreement without our written consent.
31.0 LIMITATION OF LIABILITY
- WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF (INCLUDING BUT NOT LIMITED TO DAMAGE, LOSS OR CORRUPTION OF DATA, SERVICE INTERRUPTIONS OR ERRORS, INACCURATE ADVICE PROVIDED TO YOUR CLIENTS, OR LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
- THE AGGREGATE LIABILITY OF US FOR ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY US UNDER THIS AGREEMENT WILL, IN ANY EVENT, BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE APPLICABLE PRODUCTS AND/OR SERVICES.
- YOU ACKNOWLEDGE THAT WE HAVE SET OUR PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION OF LIABILITY SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF ANY LIMITATION OF REMEDIES IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN WILL LIMIT YOUR LIABILITY FOR ITS OWN WILFUL OR WANTON CONDUCT.
- NOTWITHSTANDING ANY OTHER PROVISIONS CONTAINED HEREIN, WHERE ANY ACT OF THE NEW ZEALAND PARLIAMENT IMPLIES ANY TERM INTO THIS AGREEMENT, AND THAT ACT AVOIDS OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING SUCH TERM, THAT TERM WILL BE DEEMED TO BE INCLUDED IN THIS AGREEMENT, BUT OUR LIABILITY FOR BREACH OF THAT TERM WILL BE LIMITED IN ONE OR MORE OF THE WAYS (AT OUR OPTION).
- We make no statement, warranty, representation or promise not expressly set out in the Agreement, or required by law. We expressly disclaim all warranties, representations or promises in relation to the Service.
- This agreement shall be interpreted under the laws of New Zealand and both parties agree that any legal action or proceedings relating to this agreement shall be settled in the courts and/or tribunals in New Zealand.
“account” means all aspects of the Service provided to you under this Agreement.
“Agreement” means these Terms and Conditions of Service.
“Claim” means any action, claim, demand, cost, loss, damage, (whether special, indirect, consequential, general or any other damage), expense or other liability (including for death and injury, and the costs of defending or settling any Claim) whether arising in contract, negligence or any other tortious action.
“Confidential Information” means information or material:
containing or being passwords;
concerning either party’s internal business practices and/or actual or potential customers;
which derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; or
identified in writing by the disclosing party as confidential.
but does not include any information or material:
which is or subsequently becomes available to the general public other than through a breach by the receiving party;
which is already known to the receiving party before disclosure by the disclosing party;
which is independently developed by the receiving party without use of or reference to the Confidential Information of the other; or
which the receiving party rightfully receives from third parties without restriction as to use or disclosure.
“Direct Customer” means any person who pays you directly for your service (the service we are providing support for). Direct Customers include your resellers, but not the clients of your resellers.
“Force Majeure” means circumstances beyond the control of a party which includes (but is not limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion or civil authority, including acts of local government and parliamentary authority, materials, breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer), acts of war (declared or undeclared) or terrorism.
“person” includes an individual, a body corporate, office, commission, authority, committee, tribunal, board, institute, organisation or other bodies however described.
“Service” means the provision to you, by us, of labour-based and IT-enabled services, and all associated systems and software.
“Service Plan” means the service plan or package you have purchased from us, as advertised on our website.
“website” means any pages, material, content, software or systems made available through the supremeoutsourcing.com domain name, including all subdomains (such as “www.tandemnz.co.nz, www.outsourcetoindia.co.nz” and subsequently owned domain names.).
“you” and “your” means the entity that agrees with TANDEM NZ to use the Service. If you provide a business name on the order form, then that business is the entity which agrees with TANDEM NZ to use the service and the person(s) who complete the order form on behalf of that entity warrant(s) that he/she/they are duly authorised by the entity to enter into this legally binding agreement on behalf of the entity. If a business name was not provided on the order form, then the individual person(s) named on the order form is/are bound by this agreement and the order form must only be submitted by the named person(s).