General Terms and Conditions
1. Consultancy Agreement
1.1 These General Terms and Conditions shall be deemed to be incorporated into the Consultancy Agreement and shall operate in addition to those set out in the Consultancy Agreement.
2. Definitions and Interpretation
2.1 In the Consultancy Agreement, unless the context otherwise requires:
Commencement Date means the date set out in the Schedule 1.
Confidential Information means any information:
(a) Relating directly or indirectly to the business of The Client or The Zone or their respective suppliers or customers; or
(c) Disclosed by either party to the other on the express basis that such information is confidential; or
(d) Which might reasonably be expected by either party to be confidential in nature;
provided that where information relates exclusively to one party, nothing in the Consultancy Agreement shall require that party to maintain confidentiality in respect of that information.
Consultancy Fee means the fees payable by The Client to The Zone, for the provision by The Zone of the Services, as set out in Schedule 1.
Consultancy Agreement means the Agreement between the Zone and the Client that is the subject of these general terms and conditions.
IP means all intellectual property rights owned by The Zone including copyright and neighbouring rights, all rights in relation to documents, processes and methodologies (including patents), registered and unregistered trade marks, registered and unregistered designs, and confidential information, knowhow, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields but does not include moral rights.
Licence Fee means the fees payable by The Client to The Zone for use of IP not specifically covered in the Consultancy Agreement or where the IP is used commercially by The Client or one of it’s agents.
Reimbursable Expenses means the expenses payable by The Client to The Zone, reasonably incurred in the provision by The Zone of the Services, as set out in Schedule 1.
Services means the services to be provided by The Zone and outlined in Schedule 2.
Term means the period set out in Schedule 1 commencing on the Commencement Date.
2.2 In the Consultancy Agreement;
(a) All monetary amounts are stated and are payable exclusive of GST OR or VAT unless provided otherwise.
(b) Where the context permits, the singular includes the plural and vice versa.
(c) References to any “party” mean a party to the Consultancy Agreement and include the successors, executors, administrators and permitted assignees (as the case may be) of that party.
(d) References to clauses and schedule are to clauses in, and the schedule to, the Consultancy Agreement (unless stated otherwise). Each such schedule forms part of the Consultancy Agreement.
(e) Where the context permits, references to a “person” include an individual, firm, company, corporation or unincorporated body of persons, any public, territorial or regional authority, any government, and any agency of any government or of any such authority.
(f) References to a month or a year are references to a calendar month or calendar year.
3. Dispute Resolution Procedure
3.1 Unless a party has first complied with clauses 3.2 to 3.4 (inclusive) that party may not commence court proceedings or arbitration relating to any dispute arising from the Consultancy Agreement (except where the party seeks urgent interlocutory relief, in which case that party need not comply with this clause before seeking such relief) and where that party fails to so comply with those clauses, the other parties need not comply with those clauses before referring the dispute to arbitration or commencing court proceedings relating to that dispute.
3.2 Any party (referred to in this clause as “the First Party”) claiming that a dispute has arisen under the Consultancy Agreement between itself and any other party shall give written notice to the other party to the dispute (referred to in this clause as “the Second Party”) specifying the matter in dispute and designating as its representative in negotiations relating to the dispute a person with authority to settle the dispute. The Second Party shall, within 5 Business Days after receiving the First Party’s notice, give written notice to the First Party, designating as its representative in negotiations relating to the dispute, a person with similar authority.
3.3 The parties to the dispute shall use their reasonable endeavours to procure that the persons designated under clause 3.2 shall, within 10 Business Days of the last designation required by clause 3.2, following whatever investigations each such person deems appropriate, seek to resolve the dispute.
3.4 If the dispute is not resolved within the period referred to in clause 3.3 (or within such longer period as their respective representatives may agree is appropriate) the parties to the dispute shall within a further period of 10 Business Days (or such longer period as the representatives may agree is appropriate) use their reasonable endeavours to agree, in good faith, on a process for resolving the whole or part of the dispute through means other than litigation or arbitration (including, without limitation, further negotiations, mediation, conciliation, or independent expert determination) and on:
(a) The procedure and timetable for any exchange of documents and other information relating to the dispute.
(b) Procedural rules and a timetable for the conduct of the selected mode of proceedings.
(c) A procedure for selection and compensation of any neutral person who may be employed by the parties in dispute.
(d) Whether the parties should seek the assistance of a dispute resolution organisation.
3.5 After the expiry of the time established by or agreed under clause 3.4 for agreement on a dispute resolution process, a party which has complied with the provisions of clauses 3.1 to 3.4 (inclusive) may, by written notice to the other party to the dispute, terminate the dispute resolution process provided for in those clauses and may then refer the dispute to arbitration or commence court proceedings relating to the dispute.
3.6 Subject to clauses 3.1 to 3.4 (inclusive), any party may, by written notice to any other party, require that, if a dispute between those parties arising out of the Consultancy Agreement is not resolved within 10 Business Days of receipt of such notice by the other party, the dispute shall be immediately submitted for determination by a single arbitrator nominated by the President, for the time being, of the Auckland District Law Society after consultation with those parties.
3.7 In the event of a submission to arbitration pursuant to clause 3.6:
(a) The arbitration shall be conducted pursuant to Arbitration Act 1908.
(b) The parties’ respective responsibilities for the costs of the arbitration shall be determined by the arbitrator.
3.8 A dispute over part of an invoice should not delay payment of the balance that is undisputed.
4. Term and Termination
4.1 In addition to any other right of termination or remedy under the Consultancy Agreement or by law, this agreement may be terminated at any time and with immediate effect by written notice given by either The Client or Zone (referred to as “the First Party”) to Zone or The Client respectively (referred to as “the Second Party”) if:
(a) The Second Party has failed to comply with an earlier written notice given by the First Party specifying a material breach of this agreement by the Second Party and, in the case of a breach which is capable of remedy, requiring that the Second Party remedy that breach within 5 Business Days after receipt of that earlier notice, provided that the First Party may not at any time give such a notice if, at that time, the First Party is in default under this agreement.
(b) The Second Party is put into liquidation, has a receiver or statutory manager appointed in respect of any of its assets goes into voluntary administration, becomes insolvent, makes any arrangement with creditors or suspends, for 10 Business Days or longer, or ceases, its principal business activities, or any event analogous in nature has occurred in respect of the Second Party.
(e) The Second Party has committed any material breach of this agreement which is not reasonably capable of remedy by the Second Party within 20 Business Days, provided that the First Party may not at any time give such a notice if at that time the First Party is in default under this agreement.
4.2 Upon termination of this agreement for whatever reason:
(a) Such termination shall be without prejudice to the rights and remedies of either party in respect of any antecedent breach of this agreement by the other party.
(b) The Client shall, notwithstanding such termination, pay (in the manner and at the times provided in this agreement) to The Zone the Consultancy Fee and all Reimbursable Expenses as relate to the period up to and including the date of termination.
5. Cancellation Fees
5.1 The following fees are payable in relation to cancellation of the Consultancy Agreement:
(a) Cancellation within 10 days of the commencement date of assignment – 100% of the contract price;
(b) Cancellation within 30 working days of the commencement date of assignment – 50% of the contract price;
(c) No cancellation fee is payable for assignments cancelled 30 working days (or more) before commencement of the assignment.
6.1 Any written notice required to be given pursuant to the Consultancy Agreement shall (without limitation) be deemed validly given if:
(a) Delivered by hand or sent by facsimile transmission (provided that the sender’s facsimile machine confirms transmission to the intended recipient) to the intended recipient’s last known physical address or facsimile number; and
(b) Signed, in the case of a notice by The Zone or The Client, by a director of the party giving that notice.
6.2 For the purposes of the Consultancy Agreement, any notice transmitted by facsimile or delivered after 5.00pm on a Business Day, or at any time on a non–Business Day, shall be deemed received at 9.00am on the next Business Day.
6.3 Any notice required to be given to The Zone shall be deemed given to him if given in accordance with clauses 6.1 and 6.2.
7.1 Non Waiver – No waiver of any breach, or failure to enforce any provision, of the Consultancy Agreement at any time by either party shall in any way limit or waive the right of that party to subsequently enforce and compel strict compliance with the Consultancy Agreement.
7.2 No Assignment – Neither party may transfer or assign any of its liabilities or rights under the Consultancy Agreement to any other person without the prior written consent of the other party, which consent may be withheld at the other party’s absolute discretion.
7.3 Governing Law and Jurisdiction – This agreement is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to the Consultancy Agreement.
7.4 Partial Invalidity – If any provision of the Consultancy Agreement is or becomes invalid or unenforceable, that provision shall be deemed deleted from the Consultancy Agreement and such invalidity or unenforceability shall not affect the other provisions of the Consultancy Agreement, all of which shall remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provisions.
7.5 Entire Agreement – This agreement records the entire arrangement between the parties relating to the matters dealt with in the Consultancy Agreement and supersedes all previous arrangements, whether written, oral or both, relating to such matters.
7.6 Relationship Between the Parties – Nothing expressed or implied in the Consultancy Agreement shall constitute either party as the partner, agent, employee or officer of, or as a joint venture with, the other party, and neither party shall make any contrary representation to any other person.
7.7 Unforeseen Circumstances – Neither party shall be liable for any act, omission or failure under the Consultancy Agreement if that act, omission or failure arises directly from a cause beyond the reasonable control of the party concerned, including (without limitation) extreme weather conditions, civil disruption or industrial action, provided that:
(a) The party claiming the protection of this clause shall, as soon as possible after becoming aware of such cause or the likelihood of such cause, give the other party written notice accordingly.
(b) Notwithstanding the intervention of such cause, each party shall continue to use its best endeavours to perform its obligations as required under the Consultancy Agreement (excluding any obligations that have already been duly performed as at the date of the relevant cause) despite that cause.
(c) In any such event, neither party shall be deemed to have accepted any extra costs that may be incurred or sustained by the other party through a delay resulting from the cause.