Memorandum of Understanding

Assumptions:

1.  The Client is of the opinion that the Advisor has the necessary qualifications, experience and abilities to provide the services laid out in this MOU.
2. The Advisor is agrees to proving such services to the Client on the terms and conditions set out in this MOU.

1.0 Background

The Client and The Advisor each possess confidential and proprietary information which they may wish to disclose to each other for the purpose of providing incident response, and it is the intention of the parties to have free discussion and exchange of Confidential Information for the services provided to the Advisory Board. The parties consider that the information they will disclose is confidential and in consideration of them each making such information available to the other, they undertake to each other in the terms set out below:

2.0 Definitions

For the purposes of this MOU the following expressions have the following meanings:

“Subscriber”: An organisation that pays a monthly subscription for services during business disruptions is referred to as the subscriber." 

“Advisory Board”: Consisting of industry resilience specialists, the Advisory Board is a consortium that is activated to support subscribers during times of business disruption. As specified in this MOU, the Advisor will assume one or more roles on the Advisory Board." 

“F24 (Fact24)”: is a virtual command centre that will be used by the advisory board for activation and management of an incident when a subscriber activates during a business disruption.

“Facilitator”:The Facilitator is responsible for the facilitation, management, communication, and general tasks associated with the activation from the Subscriber. The Facilitator is the mediator and controller of all activations and all Advisors will report to the Facilitator in the first instance.

“The Client Privacy Statement”: means the Fixinc Privacy Policy Statement available on Fixinc’s website at www.advisory.fixinc.io/legal/privacy-policy/, as amended from time to time;

“Confidential Information”: means information disclosed for the Purpose by one party (the “Disclosing Party”) to the other party (the “Recipient”) in writing (including by fax and other forms of electronic transmission) or orally and which:

(a) is not generally known to the public; and

(b) which either derives economic value, actual or potential, from not being generally known or has a character such that the Disclosing Party has a legitimate interest in maintaining its secrecy; and

(c) which relates to the services, business, clients, personnel or commercial activities of the Disclosing Party;

and includes any information or analyses derived from, containing or reflecting such information, but Confidential Information excludes information which:

(d) is publicly available at the time of its disclosure under this Agreement; or

(e) becomes publicly available (other than as a result of disclosure by the Recipient contrary to the terms of this Agreement); or

(f) was lawfully in the possession of the Recipient free of any restriction as to its use or disclosure prior to its being so disclosed; or

(g) is or has been developed independently by the Recipient and without reliance upon Confidential Information disclosed hereunder;

“Personal Information”: shall have the meaning given to it under the Privacy Act;

“Privacy Act”: means the New Zealand Privacy Act 2020 as amended, superseded, re-enacted or replaced from time to time; 

“Related Person”: means any Related Company of a party as defined in section 2(3) of the Companies Act 1993 and any director, officer, employee, agent, Advisor or adviser of a party or its Related Company.

3.0 Duty of Confidentiality

The Recipient Shall:

3.1 keep the Confidential Information secret and confidential and not disclose any of it to any person other than persons who reasonably need to know the same for the Purpose;

3.2 ensure that all persons to whom the Confidential Information is disclosed in accordance with clause 3.1 are informed that the Confidential Information is confidential and that disclosure to them is subject to them observing the obligations of confidentiality set out in this Agreement;

3.3 use the Confidential Information for the sole purpose of considering, evaluating, advising on or furthering the Purpose and not for any other purpose;

3.4 not use the Confidential Information in any way which is detrimental to the Purpose or the interests of the Disclosing Party;

3.5 keep the Confidential Information and any copies of it secure and in such a way so as to prevent unauthorised access by any third party;

3.6 to the extent that the Confidential Information contains any Personal Data, ensure that appropriate technical and organisational means are in place to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction or damage.

3.7 The parties acknowledge these terms are applicable to all parties and Advisors associated with this MOU and services provided by the Client to the Subscriber.

4.0 Service Agreement

In Consideration of the matters described above and of the mutual benefits and obligations set forth in this MOU, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Advisor (individually the party “Party” and collectively the “Parties” to this MOU) agree as follows:

4.1 Services Provided

The Client agrees to engage The Advisor to provide resilience services to the Advisory Board when a subscriber activates during a business disruption. The Advisor will provide the following Services:
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4.2 Terms of Agreement

The term of this agreement (the “Term”) will begin on the date of this MOU and will remain in force and effective indefinitely, subject to earlier termination as provided in this MOU. The Term may be extended with the written consent of both parties.

4.3 Performance

The Parties agree to do everything necessary to ensure that the terms of this MOU take effect.

4.4 Engagement

Both parties acknowledge that the real nature of their relationship is that of Independent Advisor and it is expressly acknowledged that the Advisor is not an employee of the client. The parties acknowledge that nothing in this Agreement will be construed to imply that the Advisor is an agent or employee of the client.

4.5 Availability

4.5.1 The Advisor is not obligated to be on permanent call to provide resilience services to the Advisory Board. However, in the event of a Subscriber activation, the Advisor must be available to join the Advisory Board either in person or virtually using the Fact24 system within a 4 to 12-hour time frame. 

4.5.2 Failure to be available will result in the forfeiture of remuneration. If the Advisor is unable to be available for three consecutive activation notifications, the Client reserves the right to terminate this MOU with the Advisor.

4.5.3 The Advisor must provide the Client with their availability across periods of 6 weeks. This will allow the Facilitator to activate and manage available Advisors over a predetermined 6-week roster.

4.6 Currency

4.6.1 Except as otherwise provided in this MOU, all monetary amounts referenced in this MOU are in NZD (New Zealand Dollars).

4.6.2 The Advisor is entitled to be paid in USD, EUR, AUD, and NZD and will be converted from NZD on the day of transfer to the Advisor. The Client takes no responsibility for bank fees, transaction fees, or international currency conversion losses or gains during transfer.

4.7 Payment

4.7.1 The Client will pay the Advisor the total sum of the agreed hourly rate set out in Schedule 1, Item 4 and Item 5 of the agreement on or during the last business day of a calendar month for any work conducted solely for the purpose of the Client business only.

4.7.2 It is specifically acknowledged by the Advisor that they shall not be entitled to any additional remuneration other than the remuneration as specified in Schedule 1, and that the remuneration package will reflect a fair remuneration for the Services to be provided.  The Advisor will not be entitled to any payments, fees, allowances or benefits other than those specified in this MOU and, without limiting this clause, will not be entitled to paid holiday leave, special leave or redundancy compensation.

‍4.7.3 The Client will pay all invoices rendered by the Advisor in accordance with this clause, within 30 days from the completion of the Subscribers activation Incident.

4.7.4 The Contractor will be entirely responsible for income tax, GST and all other forms of tax relating to the income derived by them and expenditure made by them in the course of carrying out their obligations under this MOU and warrants to pay all such levies and duties.

4.8 Expenses

The Advisor is responsible for all expenses incurred by the Advisor providing the Services except those specifically requested by the Client in writing for certain Services.

4.9 Insurance

4.9.1 The Advisors must have the appropriate insurance, to include:

(a) professional indemnity insurance; and
‍(b) any other insurances, required by law or reasonably required by the Client in writing depending on the nature of the Advisor’s work.

4.6.2 Before the Commencement Date, and on request, the Advisor must be able to provide the Client with written evidence of the currency and terms of the insurance policies referred to in this clause.

4.9.3 The Advisor must notify the Client immediately of the cancellation of an insurance policy, or any change to an insurance policy, which affects the Clients interests. 

4.9.4 The Advisor’s obligations to insure under this clause are material obligations of this Agreement. Failure to comply with this clause may be considered a breach of the MOU justifying termination in accordance with clause 6.

4.9.5 The Client recommends that the Advisor maintains the insurance cover set out at 4.9 above for a period of 7 years following termination of the Agreement in the event of a claim being made against the Advisor following termination of the MOU. The Advisor accepts that maintaining insurance cover following termination of the MOU is at the Advisor’s discretion. If the Advisor elects not to maintain insurance cover, they do so at their own risk.

5.0 Activation Process

5.1 Roles and Responsibilities

The Advisory Board will consist of multiple Advisors and a dedicated Facilitator, which will offer resilience services for subscriber activation. The Board will consist of 1 Facilitator and 3 Advisors selected from different global resilience organiastions.

‍5.1.1 Facilitator: The Facilitator is the first point of contact for the Subscriber when they activate. The Subscriber will activate using the F24 Incident Response tool. The Facilitator will initiate the activation sequence using the Advisory Board Activation Procedure and will be responsible for coordinating the Subscriber and the Advisory Board members. The Facilitator must be on all Advisor and Subscriber communications including phone, virtual conference, in-person and similar.

5.1.2 Advisors: The Advisors will be activated via the F24 Incident Response tool via SMS, Email and Cellphone. The Advisor is responsible for acknowledging as “Available” or “Unavailable”. The Facilitator will confirm the virtual command centre login and incident response start time.

6.0 Ongoing Subscriber Services

6.1 In the event a Subscriber continues to require support and services for an ongoing activation upon expiry of their allocated subscriber hours, they have the option to request a specific Advisor or Advisors for ongoing support. This service is managed by the Client and Facilitator in the first instance and continues to follow our terms and conditions of service.

6.2 The Advisor acknowledges that this is to the discretion of the Subscriber and all terms and arrangements continue as standard between all parties. The Advisor must accept the ongoing work and confirm availability to the Client.

6.3 The Advisor will be paid an ongoing hourly rate managed and recorded by the Client via our nominated time tracking software. Payment for ongoing hours will be made in conjunction to the terms set out in clause 4.7. The Advisor must continue to provide services with the terms set out in clause 5.0.

7.0 Termination of the MOU

7.1 Either party may terminate this MOU  by giving the other party the period of written notice of 30 days.

7.2 The Client may terminate this MOU without notice if the Advisor:

(a) is charged with any criminal offence which in the reasonable opinion of the Client brings the Advisor, the Client or its Subscribers into disrepute;

(b) engages in conduct which is unlawful, exposes the Client to an appreciable risk of liability, or is otherwise not in accordance with acceptable business practices;

(c) engages in conduct that is fraudulent, dishonest or otherwise constitutes serious misconduct or a serious neglect of their duties;

(d) refuses, or in a material way fails to perform the Services; 

(e) The Advisor fails to be available for 3 consecutive call outs.

7.3 Either party may immediately terminate this MOU by notice to the other in writing if at any time the other party goes into liquidation or becomes subject to receivership or official management or makes any arrangement or composition with its creditors.

7.4 Termination of this MOU will be without prejudice to the rights and obligations of the parties prior to termination. Termination will also be without prejudice to any of the provisions of this MOU which are expressed to survive termination.

8.0 The Client May Engage Other Advisors

8.1 The Advisor acknowledges that the Client may engage other independent contractors to carry out the same or similar services. This may include other independent contractors providing the same or similar services within the same activity or Service that the Advisor is engaged in.

8.2 The division and allocation of available work between the Advisors and other Advisors engaged by the Client shall be at the sole discretion of the Client and may include but not be limited to a system where work is allocated on the basis of past performance.

9.0 Disputes

In the event of any difference or dispute between the Client and the Advisor, the parties agree to deal with each other in good faith and try to resolve the dispute by agreement. If an agreement cannot be reached within 30 days of the difference or dispute being raised by either party, both parties agree to terminate the MOU.

10.0 Sign Off

We agree to the terms of this Agreement set out above.