TERMS OF REFERENCE
1. Term of Contract
1.1. This Agreement will commence on the date that ESR sends you a confirmation notification after you have filled out the hemp test submission form. This Agreement shall terminate 4 weeks after the commencement date unless the parties otherwise agree, or this Agreement is terminated earlier by ESR or you pursuant to the termination clause of this Agreement (clause 8).
2. Payment of Price
2.1. You will pay the cost of analysis for each cultivar you require to be tested in full (including GST) to ESR on submission of the hemp test submission form. If you do not make payment on submission of the form, ESR cannot provide the analysis and testing services to you.
3. Provision of Services
3.1. ESR shall perform the hemp testing services in a competent and professional manner and in accordance with all laws, regulations, ethical and professional standards as may be applicable to the services.
3.2. You shall provide hemp samples to ESR in accordance with the collection and submission of samples guidelines available here.
3.3 It is ESR’s responsibility to decide on the method or methods used to perform any particular analysis. There is no requirement to inform you of these methods unless ESR is specifically requested to do so.
4.1. Subject to clauses 4.2 and 4.3, ESR shall only be liable for any loss, damage, liabilities or costs suffered or incurred by you arising directly from the negligent acts or omissions of ESR pursuant to this Agreement.
4.2. To the maximum extent permitted by law, the maximum liability of ESR under this Agreement shall be limited in aggregate to the value of the fees paid by you to ESR under this Agreement.
4.3 Neither party shall be liable for any indirect, special or consequential loss or damage, or any loss of profits or revenue, arising out of or in connection with this Agreement.
5. Final Reports
5.1. Following completion of the analysis services, ESR shall provide to you a comprehensive report on the analysis work completed.
6.1. Subject to clause 6.3, on completion of the analysis services and payment of all fees for such services, the report generated for you by ESR shall become your exclusive property.
6.2. Unless agreed to the contrary all intellectual property which arises out of or in the course of provision of the services by ESR shall be ESR’s sole and exclusive property.
6.3 You acknowledge that ESR is required to provide copies of any reports generated as part of hemp analysis services to the Ministry of Health.
7.1. Subject to clause 6.3, ESR and you shall not without the other’s consent, use or disclose to the detriment of the other party, any confidential information, trade secrets or intellectual property relating to the other party acquired or created in connection with this Agreement or the performance of the services.
7.2 Disclosure will not breach clause 7.1 to the extent that it may be required by law, the party owning the confidential information consents to disclosure, the disclosing party independently develops information without recourse to the confidential information, the information is obtained from a third party who is lawfully in possession of the information and not under any obligation of confidentiality, or to the extent that it is known in the public domain.
8.1. Either party may terminate this Agreement for any reason upon giving 5 business days’ notice in writing to the other party.
8.2. Notwithstanding clause 8.1 either party may terminate this Agreement immediately where the other party has committed a material breach of that party’s obligations under this Agreement and the breach cannot be remedied, or the other party having been notified of the breach has failed to remedy the breach within 5 business days’ notice of the breach.
8.3. On termination of this Agreement:
(a) you must pay ESR all unpaid and undisputed fees incurred for services delivered to you under this Agreement on or before the date of termination;
(b) except as otherwise expressly provided, ESR shall be discharged from the performance of any further obligations under this Agreement from the effective date of termination;
(c) each party will immediately return to the other all property and confidential information owned or controlled by the other party.
8.4. Clauses 4, 6, 7, 8.3 and 8.4 shall survive termination of this Agreement.
9.1. No modification, variation or waiver of this Agreement will be effective and binding on the parties unless made in writing and signed by each party.
10.1 Prior to and throughout the term of this Agreement, ESR shall effect and maintain reasonable insurance cover (including but not limited to professional indemnity insurance and public liability insurance).
11.1. ESR is in all respects an independent entity contracted by you to provide the services described in this Agreement. This Agreement does not create an employment, fiduciary, partnership, agency or joint venture relationship between the parties.
12. Force Majeure
12.1. A party will not be liable for any failure or delay in performance of this Agreement due to any circumstance reasonably beyond the control of the affected party (“Force Majeure Event”). This includes but is not limited to strikes, lockouts and other industrial action. Each party shall use its reasonable efforts to minimise the duration and consequences of any failure of or delay in performance resulting from a Force Majeure Event.
13. Dispute Resolution
13.1. Any dispute arising under this Agreement whether as to interpretation of any provision of the Agreement, or to its application shall be dealt by:(a) Direct negotiation between the parties; or failing such agreement; (b) Mediation in terms of the LEADR New Zealand Incorporated standard mediation agreement; or failing such agreement; (c) Arbitration conducted in accordance with the Arbitration Act 1996.
14.1. This Agreement shall be governed and interpreted in accordance with the laws of New Zealand.
15.1. Each term of this Agreement is separately valid and binding. If for any reason either party cannot rely on any term, all other terms will remain valid and binding.
16.1. No failure, delay or indulgence by either party in exercising any power or right conferred on that party by this Agreement will operate as a waiver of such power or right.