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23 AUGUST 2019Collaborative Marketplace AgreementPart 1 – General Terms1.Agreement to terms . 22.Status of Marketplace Agreement . 33.Membership . 34.Marketplace Catalogues and changes . 65.Access and login security . 76.Assurance . 87.Relationship principles . 88.Conduct Requirements . 89.Obligation to keep us informed . 910.Warranties . 911.Intellectual Property Rights . 1012.Marketplace Analytics . 1113.Pricing and Administration Fee . 1114.Requesting information . 1215.Confidentiality . 1216.Public disclosures . 1317.Purchasing Agency Data . 1318.Personal Information . 1419.Liability . 1420.IP Claims . 1421.Amendments . 1522.General . 1723.Assignment and replacement . 1824.Defined terms and interpretation . 19Collaborative Marketplace Agreement – Part 1 – General Terms1
1.1.1Agreement to termsWelcome to the New Zealand Government Marketplace (theMarketplace) operated by the Department of Internal Affairs (DIA)and the Ministry of Business, Innovation & Employment (MBIE) onbehalf of the New Zealand Government (we, our, us). ThisCollaborative Marketplace Agreement (the MarketplaceAgreement) applies to any provider that applies for membership inthe Marketplace. When we use the terms you and your, we arereferring to any such provider (whether an organisation orindividual). Other terms with special meaning are defined in theseGeneral Terms (in particular, clause 24 below) and, where relevant,in the Channel Terms. Notes in blue boxes are for your conveniencebut are not part of this Marketplace Agreement.1.2The Marketplace has separate channels for the sale or promotion ofdifferent types of services and goods, such as software as a service,professional services, and so on (each a Channel).1.3Each Channel contains one or more Marketplace Catalogues. DIAadministers some of the Marketplace Catalogues while MBIEadministers others. You can find a list of the Channels, theirMarketplace Catalogues, and who administers each MarketplaceCatalogue, at marketplace.govt.nz.1.4The Marketplace Agreement is structured as follows:(a)Part 1 contains the "General Terms" that apply to yourmembership of the Marketplace;; and(b)Part 2 contains the "Channel Terms" for each Channel.Channel Terms include additional terms as between you andus relating to the given Channel and they prescribe the formof agreement between you and a Purchasing Agency. Thedifferent sets of Channel Terms can be found onmarketplace.govt.nz. When you apply to have services orgoods listed in a given Channel, you will answer somequestions and be shown and asked to accept the applicableset of Channel Terms.(c)We may add further Channels and Channel Terms to theMarketplace in the future.1.5A person making an application on behalf of an organisationrepresents to us that he or she is authorised to enter into thisMarketplace Agreement on behalf of that organisation.1.6When you click to accept these terms you are forming a MarketplaceAgreement with the New Zealand Government. DIA and MBIE mayeach enforce it. The Marketplace Agreement applies as follows:(a)prior to our granting you Member status, only the GeneralTerms in Part 1 will apply;;Collaborative Marketplace Agreement – Part 1 – General TermsThe Marketplace Agreementapplies to providers who wish tolist goods or services in theMarketplace.Both DIA and MBIE have roles toplay under this Agreementbecause DIA provides theMarketplace and administerscatalogues for which it isresponsible and MBIEadministers catalogues for whichit is responsible.The terms in Part 1 apply to allproviders. The terms in Part 2apply to providers offering goodsor services in particular channels.When you click to accept theseterms, you’re entering into anagreement with the New ZealandGovernment.2
(b)if we notify you that you have not been granted Memberstatus for the Marketplace, this Marketplace Agreementterminates on the date of notification;; and(c)if we notify you that you have been granted Member status,this Marketplace Agreement comprises the General Termsin Part 1 and the applicable Channel Terms in Part 2.1.7Once you have been granted Member status, you become amember of a panel of providers in relation to the Services you havebeen permitted to list in the Marketplace.1.8If, after becoming a Member of the Marketplace and being permittedto list particular Services in one Channel, you wish to list services orgoods in another Channel, you will need to satisfy the membershiprequirements for that Channel and click to accept the applicableChannel Terms.1.9This Marketplace Agreement is the entire agreement between usand you in relation to the Marketplace and supersedes allagreements, arrangements, understandings or representationsrelating to the subject matter of this Marketplace Agreement.1.10The Marketplace Agreement prescribes the form of AgencyPurchase Agreements but those Agency Purchase Agreements,once formed, are separate contracts between Purchasing Agenciesand providers and are not part of this Marketplace Agreement.2.Status of Marketplace Agreement2.1In relation to all Marketplace Catalogues that:(a)DIA administers, this Marketplace Agreement is a "CommonCapability Contract";; and(b)MBIE administers, this Marketplace Agreement is an "All- of- Government Contract",The Agency PurchaseAgreements between you andPurchasing Agencies areseparate contracts and not part ofthis Marketplace Agreement.The Marketplace Agreementoperates in relation to allMarketplace Catalogues as eithera Common Capability Contract oran All- of- Government Contract.as those terms are defined in the Government Procurement Rules(available at www.procurement.govt.nz).3.Membership3.1At the time you seek membership of the Marketplace, you must alsoseek membership of at least one Channel.3.2To become a Member of the Marketplace you must:(a)click to accept these General Terms;;(b)follow the applicable On- boarding Process and provide allthe information we require and in a form that is satisfactoryto us;;(c)make any declarations we require;;Collaborative Marketplace Agreement – Part 1 – General TermsTo sell your services through theMarketplace, you need tobecome a member and complywith certain requirements.3
3.3(d)satisfy the membership requirements of clause 3.3 inrelation to at least one Channel;; and(e)receive a notification from us in writing that you have beengranted Member status of the Marketplace and of at leastone Channel.To become a Member of a specific Channel you must:(a)click to accept the relevant Channel Terms for that Channel;;(b)follow the applicable On- boarding Process for that Channeland provide all the information required and in a form that issatisfactory to us;;(c)make any declarations required;;(d)already be a Member of the Marketplace or, at the sametime as you apply for and obtain membership in thatChannel, also apply for and obtain Marketplace membershipunder clause 3.2;; and(e)receive a notification from us in writing that you have beengranted Member status for the specific Channel.3.4Membership of the Marketplace does not confer any exclusivity inrelation to Eligible Agencies’ selection of your Services and does notcreate any minimum purchasing or volume commitment on the partof any Eligible Agency.3.5You must complete your Services Listings (for our approval) within 6months of our notification to you that you have been grantedMember status of the Marketplace and at least one Channel and oneMarketplace Catalogue. If you do not, we may terminate yourmembership under clause 3.7(a)(i) for Material Breach (which, forthe purposes of clause 3.8, will be deemed to be non- remediable).3.6You will remain a Member of the Marketplace, the applicableChannel(s) and Marketplace Catalogue(s), and this MarketplaceAgreement will remain in force, until such time as either:3.7(a)you withdraw your membership by giving us 3 months’ priornotice by contacting us through the online 'Contact us' formreferred to in clause 22.6 (your withdrawal will be effective atthe end of that 3 month period);;(b)you terminate your membership under clause 21.4;; or(c)your membership otherwise terminates or expires inaccordance with this Marketplace Agreement.There’s no exclusivity and nominimum purchasing obligations.You can withdraw your ownmembership or we can terminateor suspend it for a range ofreasons.We may terminate your membership of the Marketplace, or anyChannel or Marketplace Catalogue (in relation to some or allServices):Collaborative Marketplace Agreement – Part 1 – General Terms4
(a)on written notice to you with immediate effect on the date oftermination specified in that notice:(i) if you have committed a Material Breach;; or(ii) if your continued membership or inclusion of particularServices is no longer appropriate given performance,financial or security issues that do or are likely toadversely affect Purchasing Agencies’ consumption ofyour Services or your or any Purchasing Agency’sreputation;;(b)for convenience by giving you at least one month’s notice;; or(c)otherwise in accordance with this Marketplace Agreement.3.8In relation to termination under clause 3.7(a), if the Material Breachor the performance, financial or security issues (as applicable) areremediable, we will use reasonable endeavours to give you anopportunity to remedy the Material Breach or the performance,financial or security issues (as applicable) before terminating yourmembership.3.9We may also terminate your membership of the Marketplace, or anyChannel or Marketplace Catalogue (in relation to some or allServices), on a reasonable period of written notice to you, if we closethe Marketplace or that Channel or Marketplace Catalogue or decideto release a new version of the Marketplace or that Channel orMarketplace Catalogue under different terms.3.10We may also suspend your membership of the Marketplace or anyChannel or Marketplace Catalogue, and/or any Services Listing, onnotice if we have a termination right under clause 3.7(a) or (c) or ifwe otherwise have reasonable trust and confidence concerns, on thedate specified in that notice and on the terms of that notice.3.11Withdrawal, suspension or termination of your membership of theMarketplace, a Channel, a Marketplace Catalogue and/or anyServices Listing does not affect the validity of any Agency PurchaseAgreement you have entered into with any Eligible Agency, unlessstated otherwise in the applicable Channel Terms.3.12Withdrawal, suspension or termination of your membership of theMarketplace will constitute the withdrawal, suspension or terminationof your membership of all Channels and Marketplace Cataloguesand you will not enter into any Agency Purchase Agreement after theeffective date of your withdrawal, suspension or termination (until, inthe case of a suspension, the suspension is lifted).3.13If you un- publish all Services Listings you have in a MarketplaceCatalogue or Channel and do not replace them with at least oneupdated Services Listing within 3 months of the date on which youun- published the last of your previously published Services Listings,your membership of that Marketplace Catalogue or Channel (asCollaborative Marketplace Agreement – Part 1 – General TermsWithdrawal or termination ofmembership doesn't affect thevalidity of Agency PurchaseAgreements.5
applicable) will expire. If you have no Services Listings in any otherMarketplace Catalogue or Channel, your membership of theMarketplace will expire at the same time.3.14If your membership of the Marketplace or a Channel or MarketplaceCatalogue is terminated or withdrawn and you subsequently apply tobecome a Member again, we may elect, in our absolute discretion,to decline your application.3.15To avoid doubt, clauses 3.5- 3.9 do not limit any additionaltermination rights or limitations on termination (if any) contained inthe Channel Terms for a given Channel for one or more particularMarketplace Catalogues.4.Marketplace Catalogues and changes4.1From the date you become a Member of a Channel:(a)you will be entitled to add Services Listings to the relevantMarketplace Catalogue(s) for that Channel in relation to theServices for which you have been granted approval forlisting;;(b)DIA, MBIE and any other Eligible Agency (or its authorisedagent) that has registered for the Marketplace will be entitledto engage with you and seek to procure your Services inaccordance with the applicable process for that Channel (oras we otherwise advise from time to time);; and(c)you will, in your interactions with Eligible Agencies, promotethis Marketplace Agreement for your Services in preferenceto all other alternatives where:When you become a Member,you can start adding ServicesListings to the relevantMarketplace Catalogue(s) andEligible Agencies can order yourServices through the applicableOrdering Process.(i) the Services will reasonably meet the Eligible Agency’srequirements;; and(ii) doing so will not conflict with your sale of the sameServices under a Pre- existing Agreement;; and(d)4.24.3you will supply the Services to a Participating Agency onrequest in accordance with the terms of the relevant AgencyPurchase Agreement.You undertake, from the date you become a Member of anyChannel, to enter and maintain your Services Listings in the relevantMarketplace Catalogue(s) for that Channel and, subject to anyrequirements set out in any applicable Channel Terms, to updatethem promptly if there are material changes to:(a)your Services;; or(b)your business, to the extent such changes materially affectyour Services Listings.Your Services are listed in therelevant MarketplaceCatalogue(s). You need to keepyour Services Listings up to date.Changes to your Services Listings must be within the scope of theexisting Services Listings for which you were granted consentCollaborative Marketplace Agreement – Part 1 – General Terms6
through the On- boarding Process for the applicable Channel and notbe entirely new services or goods. If in doubt, please contact us.4.4If you wish to list entirely new services or goods for which you havenot been granted approval for listing in any Channel in theMarketplace, you will need to follow the applicable On- boardingProcess for those services or goods and obtain our consent.4.5You must not upload or add any content to the Marketplace that isobscene, defamatory, threatening, invasive of privacy or that isotherwise harmful, objectionable or contrary to the intellectualproperty or other rights of others. This includes viruses, worms orany code of a destructive nature.4.6You acknowledge and agree that, except for your non- public pricing,service level details and any other information that we indicate willonly be visible to Participating Agencies, your Services Listings inthe Marketplace Catalogues may be made publicly available via theMarketplace. Your non- public pricing and service level details areConfidential Information that can only be disclosed in accordancewith clause 15.4.7Except to the extent stated otherwise in applicable Channel Terms,you may remove an entire Services Listing from the relevantMarketplace Catalogue(s) by giving us 30 days' written notice ofremoval.4.8Removal of a Services Listing does not affect the validity andongoing application of any Agency Purchase Agreement you haveentered into with Eligible Agencies.5.Access and login security5.1To enter and edit your details and Services Listings on theMarketplace, you need to log in with your username and passwordfor the Marketplace. You are responsible for selecting a secret andstrong password and for maintaining the security of your usernameand password.5.2You must also provide your full name, a valid email address and anyother information we request to complete the registration processand you must keep these details up to date. Fictitious entries are notpermitted.5.3Usernames and passwords are personal to the members of yourorganisation to whom they are allocated. You are not permitted toshare or allow them to be shared with others.5.4We may suspend or disable your username and password if weconsider it necessary for security reasons or if you breach theseterms.You must not add inappropriatecontent to the Marketplace.Your Services Listings are likelyto be made publicly available butyour non- public pricing, servicelevel details and other sensitiveinformation will be keptconfidential.Removing a Services Listingdoes not affect your agreementswith Eligible Agencies.You need a login to enter andedit your Services Listings. Youneed to take good care of it andnot share it with others.Collaborative Marketplace Agreement – Part 1 – General Terms7
6.Assurance6.1From time to time we may elect to seek assurance on or verify:(a)any statements you have made relating your Services ormembership in the Marketplace, whether during an On- boarding Process or subsequently;;(b)the accuracy of your Services Listings and whether theycontinue to meet the applicable Qualification Criteria;;(c)any concerns that we or any Purchasing Agency may havein relation to your provision of Services to PurchasingAgencies;;(d)the proper calculation of the Administration Fee or dataprovided to calculate it, except in circumstances where theMarketplace calculates the Administration Fee automatically;;and/or(e)your compliance with this Marketplace Agreement, orAgency Purchase Agreements.6.2If we decide to do so, you must provide us promptly with anyexplanations, information and documentation, and any assistance,that we reasonably request. You will be responsible for your owncosts in relation to these assurance processes.6.3Without limiting any other rights in this Marketplace Agreement, ifyou do not comply with this requirement or if we are not satisfiedwith the outcome of an assurance process, we may suspend orterminate:(a)your membership in the Marketplace or one or moreChannels or Marketplace Catalogues;; or(b)one or more of your Services Listings in one or moreChannels or Marketplace Catalogues.7.Relationship principles7.1You will, in your interactions with us and Participating Agencies,adopt a working approach that is collaborative, open, transparent,ethical and honest.8.Conduct Requirements8.1In addition to your other obligations under this MarketplaceAgreement and any Agency Purchase Agreement, you will adhere tothe:(a)Conduct Requirements;; and(b)subject to clause 21.4, any other codes of conduct relevantto membership in the Marketplace (each an AdditionalCode of Conduct) notified to you by DIA or MBIE from timeCollaborative Marketplace Agreement – Part 1 – General TermsWe may undertake assuranceprocesses from time to time. If wedo, you’ll need to help us out.You need to act in an open andethical manner and comply withsome conduct requirements.8
to time at least 30 days before the Additional Code ofConduct is intended to come into effect for the purposes ofthis Marketplace Agreement.9.Obligation to keep us informed9.1You will keep us and all relevant Purchasing Agencies informed, asearly as practicable, of material matters that will, or are likely to,adversely affect the provision or quality of the Services or your abilityto perform your obligations under this Marketplace Agreement or anyAgency Purchase Agreement.10.Warranties10.1You warrant, represent and undertake to us and each PurchasingAgency that:(a)you have full power, capacity and authority to execute,deliver and perform your obligations under this MarketplaceAgreement and any Agency Purchase Agreement;;(b)you have, and will continue to have, all necessary consents,permissions, licences and rights to enter into and performyour obligations under this Marketplace Agreement and anyAgency Purchase Agreement;;(c)this Marketplace Agreement constitutes your legal, valid andbinding obligations and is enforceable in accordance with itsterms;;(d)you have not offered and will not offer any inducement toany Official in connection with:You need to keep us andPurchasing Agencies informed ofmatters that could adverselyaffect the Services.You’re telling us that you’re ableto enter into this agreement andagreements with agencies, youhave the consents andpermissions you need, youconsider this Agreement to bevalid and binding, you've notoffered inducements to officials,there's no collusion, you takesystem security seriously, youhave the IP rights you need toprovide your Services, and theinformation you provide isaccurate.(i) entering into this Marketplace Agreement;;(ii) entering into any Agency Purchase Agreement;; or(iii) entering into any Statement of Work under any AgencyPurchase Agreement;;(e)in joining the Marketplace, providing information through theOn- boarding Process and establishing your Pricing, suchdecisions and prices were arrived at independently andwithout collusion;;(f)where relevant, you have used and shall continue to usereasonable endeavours to prevent the introduction, creationor propagation of any disruptive elements (including anyvirus, worms and/or trojans, spyware or other malware) intothe Marketplace and the systems you use to interact with theMarketplace and to provide your Services;;(g)you own or have obtained valid licences for all IntellectualProperty Rights that are necessary to perform yourobligations under the Marketplace Agreement and anyAgency Purchase Agreement and shall maintain the same inCollaborative Marketplace Agreement – Part 1 – General Terms9
full force and effect for the duration of the MarketplaceAgreement and all Agency Purchase Agreements;;(h)the information you provide to us through the On- boardingProcess is true, accurate, current and complete whenprovided;; and(i)the information you provide to Eligible Agencies throughyour Services Listings is true, accurate, current andcomplete.10.2The warranties, representations and undertakings set out in clause10.1 above will be deemed to be given by you continuouslythroughout the term of this Marketplace Agreement.10.3You will promptly notify us if at any time during the term of thisMarketplace Agreement you breach any of the warranties,representations and undertakings in this clause 10.11.Intellectual Property Rights11.1Except as stated in clause 11.2, we and/or our licensors own and willremain the owners of all Intellectual Property Rights in content onthe Marketplace website.11.2You or your licensors own the Intellectual Property Rights in yourServices Listings, any other content you may add to the Marketplacewebsite and your Pre- existing and Independent Works.11.3Ownership of Intellectual Property Rights in Deliverables depends onthe terms of the applicable Agency Purchase Agreement (including,where relevant, any Statements of Work under them).11.4If the applicable Agency Purchase Agreement does not conferownership of particular Intellectual Property Rights on thePurchasing Agency, you or your licensors will remain or be theowners of those Intellectual Property Rights unless the law stipulatesotherwise.11.5To the extent that you own the Intellectual Property Rights in contenton the Marketplace website, you grant DIA, MBIE and eachParticipating Agency a non- exclusive and royalty- free licence to use,copy, store, amend (without materially affecting its accuracy ormeaning), distribute and publish that content for any purpose relatingto the Marketplace, Participating Agencies’ consumption of yourServices and our or Participating Agencies’ record- keeping andarchiving requirements and obligations. This licence is subject to theconfidentiality obligations in clause 15.11.6Clause 11.5 is intended to benefit Participating Agencies and beenforceable by them under the Contract and Commercial Law Act2017.11.7You may not use DIA’s, MBIE’s or a Participating Agency’s legalnames, logos, brands or images (including the New Zealand Coat ofCollaborative Marke
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